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Ex-Winston Lawyer Can’t Be Forced to Arbitrate Job Claims (1)

Feb. 14, 2019, 7:13 PMUpdated: Feb. 14, 2019, 11:38 PM

A former Winston & Strawn LLP intellectual property attorney can litigate—and can’t be forced to arbitrate—her pay, bias, and retaliation claims.

The California Supreme Court during its weekly meeting Feb. 13 declined to review an appellate ruling that the arbitration agreement Constance Ramos signed as an income partner contained unfair provisions that couldn’t be separated from the rest of the agreement. Those provisions included secrecy clauses that would have prevented Ramos from interviewing potential witnesses and requiring her to pay half the costs.

Justice Ming Chin wanted to grant review. The docket doesn’t indicate the reasoning for the justices’ decisions. Chin has dissented in previous lawsuits over arbitration including a seminal case in which he held that the majority decision undermined a federal policy favoring the enforcement of arbitration agreements.

The appellate ruling shows that law firm partnerships have some risk regarding the enforcement of arbitration provisions in their partnership agreements, even with partners, where the partner lacks negotiating power, said Richard Rosensweig, a director at Goulston & Storrs who specializes in corporate and business litigation and attorney malpractice.

“It shows that notwithstanding the statutory policy favoring arbitration and the broad interpretation given to arbitration clauses, courts are often uncomfortable enforcing arbitration provisions where fundamental rights—such as freedom from discrimination—are in play,” Rosensweig said in a Feb. 14 email to Bloomberg Law.

Back to Trial Court

“We are of course pleased the California Supreme Court allowed the Court of Appeal decision to stand,” Noah D. Lebowitz, the Berkeley, Calif.-based counsel for Ramos, told Bloomberg Law. “We are anxious to get back to the trial court and get into discovery and be able to develop and prove our case.”

“We’ve been waiting for over a year and half,” Lebowitz said Feb. 14.

A Winston & Strawn representative wasn’t immediately available for comment. The co-counsel that Winston & Strawn hired for the appeal, Lynne Hermle, was the same Orrick, Herrington & Sutcliffe LLP partner who successfully represented venture capital firm Kleiner Perkins Caufield & Byers LLC in an ex-employee’s gender discrimination case. Hermle was traveling and couldn’t be reached for comment.

Arbitration Compelled

Ramos sued after leaving the firm alleging state law discrimination, retaliation, wrongful termination, and anti-fair-pay practices. Winston moved to compel arbitration pursuant to the partnership agreement Ramos signed shortly after joining the firm.

The appeals court held under a California Supreme Court ruling that the arbitration agreement was unconscionable. It granted Ramos’ petition to proceed with California Superior Court, San Francisco, claims.

Jones Day, Akin Gump Strauss Hauer & Feld, Bryan Cave Leighton Paisner, and Perkins Coie, in a letter urging California Supreme Court review, said the appeals court went too far in extending protections afforded employees to law firm partners.

“Not only do sophisticated lawyers have a much freer choice about whether to join a law firm as a partner, but there is no serious risk of ‘one-sided’ agreements given that partners may be on either side of any particular dispute. The Court of Appeal gave short shrift to these distinctions,” the Big Law letter to the court said.

Ramos has since opened a solo practice in Oakland, Calif., Lebowitz said.

The case is Ramos v. Superior Court (Winston & Strawn), Cal., No. S253014, review denied 2/13/19.

(Updated to include additional reporting.)

To contact the reporter on this story: Joyce E. Cutler in San Francisco at

To contact the editors responsible for this story: Phil Kushin at; Terence Hyland at