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A Waste of Time? The War Against Jones Day Over Sex Bias Claims

March 26, 2021, 5:12 PM

What a royal tease.

It started off with a bang—saucy allegations of an entrenched frat culture, a leader who ruled like an autocrat and a system of rewards so impenetrable that it’s dubbed a “black box.” I thought all this would end in bright lights shining on the inner workings of a secretive, powerful firm.

So much for that. It promised so much yet delivered so little.

That’s how I feel about the finale to that cluster of gender discrimination lawsuits against Jones Day. Five of the six plaintiffs—all female lawyers formerly at the firm—have now dropped out of the case, and we are left clueless what transpired. We don’t know if the women got a tidy sum to go away. We don’t know if Jones Day crushed the claims to smithereens and paid squat. We don’t know if something amazing occurred—like Jones Day promising to amend its system and be less opaque.

I find the lack of a public explanation frustrating and deeply unsatisfying. We just celebrated (if that’s the word) Equal Pay Day and the clamor to close the gender pay gap is building to a crescendo. In this high-profile challenge to Big Law, though, we are left hanging. So what’s the point of these exhausting lawsuits against powerful institutions if they end in secrecy?

Sanford Heisler Sharp partner Deborah Marcuse, who represented the plaintiffs in the litigation, assures me she gets my pain. Both Marcuse and fellow partner, Kate Mueting, who also worked on the matter, agreed to talk to me on the condition we didn’t talk about the specifics of the Jones Day litigation.

“What you’re feeling rings true from a literary point of view,” says Marcuse. But the reality, she adds, tends to be anti-climactic: “It’s not unusual to say nothing about settlement.”

Mueting says clients sometimes feel let-down at the conclusion of a matter. “I have clients who tell me, they want the company to apologize, but the vast majority of cases are resolved before a ruling,” adding there’s usually no declaration that “this firm is good or evil.”

One thing is clear: Jones Day isn’t showing a drop of contrition publicly—yet. Unlike some other notable gender bias cases, such as the lawsuit brought by Kerrie Campbell against her former firm Chadbourne & Park (now Norton Rose Fulbright) that concluded with the firm practically thanking Campbell for raising their consciousness, Jones Day is saying boo about the conclusion of the litigation.

Contrast this with a statement from the five women stating that “[we] have now concluded our case against Jones Day,” noting that the firm “produced payroll data that does not support class-wide claims of gender discrimination.” (I contacted the firm but have not heard back.)

Here’s what we do know: In January, Jones Day re-annointed its long-time managing partner Stephen Brogan to another term with no apparent expiration date. As watchers of the firm know, being the top dog at Jones Day is akin to being emperor. Brogan is the sole arbiter of partners’ compensation—information he reputedly keeps in a literal black box. William Henderson, a professor at Indiana University’s Maurer School of Law and a former associate at the firm, once told me: “If [Brogan] were to die tomorrow, someone has to go to a special safe to find out how everyone is paid.”

Folklore? Maybe. But the point is that Brogan personifies the Jones Day’s zipped-up tradition and the trappings of the black box—which is at the heart of the claims of inequity at the firm.

Say what you will about the efficiency of the black box system (and I know there are defenders) but I can’t see how a secretive system fosters pay equity or trust. You basically have to believe in the patriarchy, the system—whoever is in power. And why would anyone, particularly a group that’s been historically underpaid, do that?

So I’m back to my original gripe: Where have these hard-fought sex discrimination claims against Jones Day left us?

Maybe there’s more going on below the surface. “I think there was a settlement,” says Peter Romer-Friedman, a principal at litigation boutique Gupta Wessler, where he heads the civil rights and class actions practice. “I highly doubt that they dismissed the claims without an agreement. Jones Day is very aggressive. If the plaintiffs just went away, it would have gone after them for attorney fees and costs.”

Of course, Jones Day would have reason to cast doubt that it caved at all. “They want the public to think that plaintiffs went away because the claims had no merit,” explains Romer-Friedman. “But I can tell you it’s very rare that in cases where there’s excellent counsel, which is the situation here, that the plaintiffs would go away without settlement.”

Marcuse and Mueting also argue that these lawsuits are impactful even if the outcome is not crystal clear. “Lawsuits change firm behavior, says Marcuse. “Just having public conversations about these suits make a difference.” The hard part, she admits, is making a direct connection: “We can’t isolate contributing factors to change. Is it a particular lawsuit? Or just changes in the world?”

The discourse that spills from these suits also empowers people to speak out. “More people are raising their hands to challenge discrimination,” says Mueting. “For a long time those in risk-adverse professions like law were reluctant to call out discrimination.”

The other key message: Those who stepped up to sue are no longer stigmatized. All the five women in the suit are having terrific careers, say Marcuse and Mueting. Nilab Tolton, Andi Mazingo and Meredith Williams have joined other law firms, while Jaclyn Stahl is an Assistant U.S. Attorney in San Diego and Saira Draper is director of voter protection for the Democratic Party of Georgia. Katrina Henderson, who is still litigating, is now in-house counsel with Twentieth Century Studios.

It must be a relief that you can sue a powerhouse like Jones Day and not trash your career. God knows that wasn’t always the case.

But it still bothers me that Jones Day appears cold and silent—as if none of this made a dent in its armor. Wouldn’t it be nice if it said something about how all this constitutes a teachable moment—some type of grace note?

To contact the columnist: Vivia Chen at vchen@bloombergindustry.com