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Roberta Kaplan Quits Time’s Up Amid Cuomo Probe Fallout (1)

Aug. 9, 2021, 8:24 PM; Updated: Aug. 9, 2021, 10:19 PM

Roberta Kaplan, a lawyer who helped start the Time’s Up Foundation to support victims of sexual harassment, has resigned from the organization after being criticized for her law firm’s work in a probe of New York Gov. Andrew Cuomo (D).

The New York Times broke the news Monday of Kaplan’s resignation and obtained a copy of the letter she sent Aug. 9 to Nina Shaw, vice chair of the board of directors at Time’s Up, which was formed in early 2018 and inspired by the #MeToo movement.

“Unfortunately, recent events have made it clear that even our apparent allies in the fight to advance women can turn out to be abusers,” Kaplan wrote. “We have felt the raw, personal, and profound pain of that betrayal.”

A 165-page investigative report released last week by New York Attorney General Letitia James disclosed that Kaplan consulted with Cuomo administration officials on a draft op-ed or letter that disparaged former Cuomo aide Lindsey Boylan, the first woman to come forward with allegations against the governor.

While the op-ed was never published, the report noted that a longtime Cuomo loyalist, Melissa DeRosa, who submitted her resignation Sunday, testified that she told the governor that Kaplan had run the plan by the head of Time’s Up, which only wanted a few changes to the letter. DeRosa was represented in the probe by Sean Hecker, a name partner at Kaplan’s firm Kaplan Hecker & Fink.

Kaplan didn’t respond to a request for comment about her resignation from Time’s Up, whose president and CEO is fellow attorney Christina “Tina” Tchen, who was once chief of staff to former First Lady Michelle Obama.

The New York-based organization issued a statement via Twitter from its board and Tchen promising to hold itself accountable and find a new way forward by engaging with survivors of sexual harassment and assault, as well as critics and allies.

“The events of the last week have made it clear that our process should be evaluated and we intend to do just that,” said the statement, which asked for not a pass, but perspective, as Time’s Up reviews the means by which it advocates for survivors.

James Report

The report released last week was compiled by Cleary Gottlieb Steen partner Joon Kim, a former top federal prosecutor in Manhattan, and veteran labor and employment lawyer Anne Clark of New York’s Vladeck, Raskin & Clark. The report detailed claims that Cuomo sexually harassed 11 women.

Kaplan subsequently sought to distance herself from Cuomo, whose executive chamber hired Arnold & Porter Kaye Scholer partner Paul Fishman—a former top federal prosecutor in New Jersey—to represent it earlier this year in another inquiry.

Arnold & Porter was paid roughly $109,000 by Time’s Up in 2019, according to the nonprofit’s most recent federal tax filing, which shows that Kaplan drew no salary in her role as chair of the foundation’s board.

Tchen as the head of Time’s Up received more than $96,900 in total compensation after being hired in November of that year to succeed former CEO Lisa Borders, who earned nearly $590,800 during 2019. Tchen issued a separate statement last week through Time’s Up that denied she gave advice to Cuomo’s team.

“I would never, nor have I ever, worked to discredit a survivor in any way,” Tchen said. “No survivor should be attacked and the truth should be told. I’m furious that the Governor’s office used me and Time’s Up as a justification for their defense.”

Washington-based Buckley hired Tchen, a former partner at Skadden, Arps, Slate, Meagher & Flom, to lead its Chicago office in 2017. Tchen teamed up two years later with Kaplan to form a firm to help businesses fight sexual harassment in the workplace. She left Buckley in late 2019 to become the leader of Time’s Up.

Time’s Up does not list an in-house general counsel or chief compliance officer on its staff leadership page, and a spokeswoman for the organization didn’t respond to an inquiry about whether it would look to create such a position.

Legal Entanglements

Kaplan, a high-profile litigator who started her own firm in 2017 after leaving the partnership at Paul, Weiss, Rifkind, Wharton & Garrison, cited in her letter her role in helping to set up the nonprofit and its Time’s Up Legal Defense Fund, an entity formed to connect sexual harassment victims with outside counsel.

As a litigator in private practice, Kaplan’s “vital ethical duties of loyalty and confidentiality” prevent her from providing details as to the exact nature of the counsel she provided those in Cuomo’s orbit, her letter said.

“The standards that apply to lawyers are different from and more stringent than ethical norms that apply to others,” wrote Kaplan, who co-founded the Time’s Up Legal Defense Fund. “I believe those standards are essential not only for the profession as a whole, but also for the administration of justice.”

Time’s Up said in its statement that its legal defense fund is a “totally separate entity” that is “housed and administered” by the National Women’s Law Center.

Kaplan came under scrutiny last year after she was retained by Goldman Sachs Group Inc. to defend it in a lawsuit filed by Marla Crawford, a former in-house lawyer at the financial services giant who accused the company’s legal leadership of covering up sexual harassment. The dispute was moved to arbitration this year.

Since the Cuomo report was released other former aides have now publicly spoken out about the governor’s alleged actions. Actress and activist Rose McGowan has publicly taken Time’s Up and Tchen to task over the Cuomo report. Another group led by activist Alison Turkos posted an open letter Monday morning on the website Medium accusing Time’s Up of “failing the survivor community.”

Turkos wrote that she speaks for a “collective group of survivors and victims” who were “dismayed yet unsurprised to see Time’s Up leaders Roberta Kaplan and Tina Tchen” named in the Cuomo report. Turkos said the “bold” vision to “hold our abusers accountable” had been lost since Time’s Up began nearly four years ago.

‘Weaponized’ Knowledge

In her letter, Turkos added that Kaplan and Tchen “weaponized their knowledge of survivors experiences to help Governor Cuomo and his office retaliate against at least one of nearly a dozen women who were courageous in speaking up about the myriad of ways he abused his power and violated their bodies in the workplace.”

In March, Cuomo’s former top lawyer, Kumiki Gibson, resigned from his office to become general counsel for the Planned Parenthood Federation of America.

Cuomo still faces another broader investigation being conducted by lawyers from Davis Polk & Wardwell into whether he should be impeached for actions taken during the coronavirus pandemic, as well as in his personal life.

Arnold & Porter’s Fishman is advising Cuomo’s office in that matter. The firm didn’t respond to a request for comment about whether it has continued to do work for Time’s Up since 2019. Nor did Shaw, vice chair of the board at Time’s Up and a founding partner of Los Angeles-based entertainment firm Del, Shaw, Moonves, Tanaka, Finkelstein & Lezcano.

Public records show that Roberta Horton, a longtime intellectual property partner at Arnold & Porter, has handled trademark work on behalf of Time’s Up and other anti-sexual harassment and gender equity-focused groups like the National Women’s Law Center and Facebook Inc. COO Sheryl Sandberg’s LeanIn.Org.

(Adds statement from Time's Up about its legal defense fund in 19th paragraph and information about Arnold & Porter in final two paragraphs.)

To contact the reporter on this story: Brian Baxter in New York at bbaxter@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com;
John Hughes in Washington at jhughes@bloombergindustry.com

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