Ropes & Gray LLP didn’t discriminate against a black lawyer who didn’t make partner, a federal court has held. U.S. District Judge Richard G. Stearns still refused to dismiss the former associate’s claim for retaliation and scheduled a trial for November.
The decision isn’t unusual, said Samuel Estreicher, a professor at New York University School of Law who specializes in employment law.
“Underlying discrimination claims get rejected with some frequency but the retaliation claims still go to trial,” he said in a phone interview. “And plaintiffs can do well with these claims because juries understand them.”
John H. Ray III, a Harvard-trained attorney, joined the Boston office of Ropes & Gray as a fifth-year litigation associate in 2005. After initial positive performance reviews, his evaluations declined with time and in 2008 he was told he wouldn’t make partner.
Ropes & Gray, according to the ruling, has what’s known as an “up or out” policy -- associates who won’t become partners must leave the firm after a severance period.
Ray asked for extensions of the six months offered. In May 2009, the firm refused, although it ultimately suggested a two-month extension if Ray agreed to release the firm from any claims.
Ray rejected the offer and sent one partner a draft discrimination complaint he planned to file with the Equal Employment Opportunity unless the firm offered either an indefinite severance period or a payment of $8.5 million, according to the court’s decision. The firm rejected the offer and told Ray he couldn’t return to the office.
Ray filed his claim with the EEOC, which in 2011 rejected the discrimination claim while saying there was “probable cause to believe that Ropes had retaliated against Ray for filing the charge,” according to the Aug. 16 ruling.
Mediation was unsuccessful and Ray sent the EEOC’s finding to members of congress, the president of the NAACP and Martha Minow, the dean of Harvard Law School, as well as others, Stearns wrote. The blog Above the Law learned of the dispute and, in response, a firm spokesman sent the blog the EEOC ruling, which it published.
In the Aug. 16 ruling, Stearns found that Ray had “not come forward with plausible evidence” that the firm’s decision was “tinged with or influenced by racial animus.”
The court, however, said that a jury should decide whether Ropes & Gray’s dissemination of the EEOC determination, which contained “severely damaging information about Ray,” was retaliatory. The court also said that a jury could find that a partner’s refusal to provide a recommendation following Ray’s EEOC complaint could be found to be “in retaliation for filing an EEOC charge.”
Ray’s lawyer, Latif Doman of Washington’s Doman Davis LLP, said, “We were surprised by the decision dismissing the discrimination claim and we will probably appeal, but we can’t until after the trial on retaliation slated for November.”
Doman said Ray has his own practice and is “making the best of a bad situation.”
“He’s a Harvard Law School grad, who was on Law Review and clerked for the Seventh Circuit,” Doman said. “His skill set says he could and should be doing more -- it’s sad.”
R. Bradford Malt, the chairman of the firm, said by phone yesterday that the firm doesn’t comment on pending litigation. The firm is represented by Foley Hoag LLP.
The case is Ray v. Ropes & Gray, 1:11-cv-11370, U.S. District Court, District of Massachusetts (Boston).
In the Courts
Chevron Can Subpoena E-Mail Information in Ecuador Case
Chevron Corp. (CVX), facing a $19 billion damage award in an environmental case in Ecuador, can subpoena information about the e-mail accounts of the plaintiffs’ lawyers and their contacts, a U.S. judge ruled.
U.S. Magistrate Judge Nathanael Cousins in San Francisco yesterday refused to block some subpoenas in Chevron’s lawsuit against Steven Donziger, the lead U.S. legal adviser for the Ecuador plaintiffs. The oil company alleges that Donziger and others improperly influenced a court expert in a case in Lago Agrio, Ecuador, and committed fraud to win the judgment.
The company’s racketeering suit against Donziger is pending in federal court in Manhattan. While Chevron already has tens of thousands of Donziger’s e-mails, it has subpoenaed Internet service providers for information sent to Donziger’s Gmail account and related e-mail accounts, according to yesterday’s ruling. Information about Donziger’s accounts from 2003 to 2011 must be produced, Cousins ruled.
Karen Hinton, a spokeswoman for Donziger, had no immediate comment on the decision.
Cousins also ruled that Chevron’s subpoenas don’t infringe the free-speech rights of the targeted activists, although he limited the amount of information the company is entitled to. Chevron isn’t seeking e-mail content, only identifying information associated with subscribers and usage, he said.
The case is Chevron v. Donziger, 12-cv-80237, U.S. District Court, Northern District of California (San Francisco).
AMR, US Airways Seek November Trial in U.S. Antitrust Suit
The February trial date sought by the Justice Department “will cause serious harm and cannot be justified,” the airlines said in a joint filing yesterday. The carriers and the Justice Department asked U.S. District Judge Colleen Kollar-Kotelly in Washington for a hearing to resolve the timing dispute.
“The parties’ urgency to complete their transaction is far greater here than in ordinary merger cases,” the airlines said in their filing. “American’s ongoing bankruptcy proceedings compound the costs and uncertainties associated with the delays caused by the government’s lawsuit, including approximately $500,000 in bankruptcy-related professional fees alone every day that the bankruptcy continues.”
The planned merger, the Justice Department said in its lawsuit filed Aug. 13, would hurt competition in the airline industry and remove the incentive for US Airways to offer lower prices, leading to higher fares for consumers.
The suit is an obstacle to American’s plans to exit bankruptcy through a deal that would create the world’s biggest airline. The challenge marks a break with the department’s past policy, which allowed six airlines to merge during the past five years in an effort to cut costs and end losses.
The antitrust case is U.S. v. US Airways Group Inc., 13-cv-01236, U.S. District Court, District of Columbia (Washington). The bankruptcy case is In re AMR Corp. (AAMRQ), 11-bk-15463, U.S. Bankruptcy Court, Southern District of New York (Manhattan).
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Law Firm Moves
SEC to Expand Ban on Employees Lobbying Agency After Departure
Hundreds of U.S. Securities and Exchange Commission lawyers and examiners face new obstacles to cashing in on their agency experience under an expanded ethics rule to take effect in January.
The change targets the practice of regulators moving to jobs at law firms and investment banks where they capitalize on their SEC relationships. The ethics rule, which previously affected only the most senior officers, will now be applied to everyone who earns more than $155,440 a year, according to a copy of an agency announcement.
The employees will be banned from contacting old colleagues for one year after leaving the SEC when the policy becomes effective in January. Commissioners and division directors have long faced such limits.
The rule “places us on even footing with our peer regulators and adds an additional layer of protection against even the appearance of impropriety when former employees take on new jobs,” Shira Pavis Minton, the SEC’s top ethics official, wrote in the announcement.
Law firms and investment banks regularly recruit top aides to SEC commissioners, enforcement attorneys and examiners of broker-dealers to help defend against investigations and advise on compliance. More than 400 SEC alumni filed disclosure statements saying they planned to represent clients before the agency from 2001 to 2010, according to a recent report by the Project on Government Oversight, a nonprofit government watchdog group.
Former SEC officials who have been affected by the ban include ex-enforcement chief Robert Khuzami, who is now working at Kirkland & Ellis LLP, and former SEC Chairman Mary Schapiro at Promontory Financial Group LLC.
Outside the agency, most U.S. government personnel earning more than $155,440 a year have long been covered by the one-year restriction. Ten years ago, the SEC won an exemption for some workers designed to make regulators’ jobs more attractive.
McCarter & English Expands IP Practice in New York and Boston
Lisa D. Tyner and James G. Cullem joined the intellectual property practice of McCarter & English LLP. Both lawyers will serve as special counsel -- Tyner in the New York office and Cullem in the Boston office.
The additions continue the expansion of the firm’s IP group, which also recently added Eric Evain as a partner in the firm’s Wilmington, Delaware, office. The firm now has more than 100 IP lawyers, technical specialists and patent agents, according to a statement.
“Lisa and Jim bring valuable knowledge and experience to McCarter due to their extensive work in the biotech industry,” said Elizabeth Hanley, the head of McCarter’s Intellectual Property/Information Technology Group.
Cullem is a registered patent attorney with expertise in both business development and IP licensing issues that face most early-to-mid stage biotech companies.
Tyner specializes in patent prosecution and due diligence investigations in life sciences, and assists clients with the preparation of patentability, infringement, validity, and freedom-to-operate opinions.
Kaufman Dolowich & Voluck Adds Partner in Firm’s LA Office
Cameron Stewart joined Kaufman Dolowich & Voluck LLP as a partner in the firm’s Los Angeles office. Stewart has more than 15 years of experience in all aspects of employment law.
Stewart’s practice focuses on defending employers in employment discrimination, harassment and wrongful discharge cases in state and federal courts and administrative agencies. She represents employers and management in litigation and preventive counseling, wage and hour matters, wrongful termination, Title VII and the California Fair Employment and Housing Act, and sexual harassment training and investigations.
Stewart had been a member in the Sherman Oaks, California, office of Nemeck & Cole. Before that, Stewart was managing partner of the Los Angeles office of Johnnie L. Cochran Jr.’s law firm, The Cochran Firm, where she was a plaintiff’s lawyer and chairman of its employment litigation department.
“Cameron’s experience representing both plaintiffs and defendants gives her the two perspectives that will be tremendously beneficial to our clients,” said Michael A. Kaufman, co-managing partner of the firm.
Litigator Joins New York Office of Michelman & Robinson
Robert D. Piliero joined the New York office of Michelman & Robinson LLP as a partner in the commercial and business litigation department of its New York office.
Piliero has almost 40 years of experience representing clients in complex business and commercial litigation, the firm said. He concentrates on issues related to sophisticated financial products and recently has focused on litigation stemming from the credit crisis.
David A. Schwartz, managing partner of the firm’s New York office, said Piliero’s “experience and expertise will further bolster our litigation department.”
Piliero previously was a shareholder at Butzel Long PC.
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