Women and their male allies in the plaintiffs bar want to see more women in charge of big, multiplaintiff cases. This week in Atlanta, a group of leading lawyers and judges from around the country convened to figure out how to make it happen.
It’s a conversation that big corporate defense firms have been having for years: how women can overcome barriers and biases that have kept men controlling most major matters. Research presented at the invitation-only conference in Atlanta, held by Duke Law’s Center for Judicial Studies, addresses the imbalances on the plaintiffs side.
Women plaintiffs lawyers made up only 16.6 percent of the attorneys appointed class counsel or to plaintiffs steering committees in multidistrict litigations filed from 2011 to 2016, a new study found. However, in a sign of progress, the percentage of women in lead MDL roles jumped to 27.7 percent in 2015—an 11 percentage point increase over the five-year average.
The stakes are high for MDL appointments, since the lawyers are handling litigation that affects hundreds or even thousands of underlying plaintiffs’ cases. A leadership role in an MDL means prestige and, potentially, a big financial payoff.
“We needed data,” said Dana Alvare, a Pennsylvania lawyer and doctoral candidate in sociology at the conference and who authored the MDL study, Vying for the Lead in the Boys’ Club, for Temple University Law School’s Women in Legal Leadership Project.
“The enduring gender gap has not been going away, even though women have been graduating from law schools in the same numbers as men for 30 years,” Alvare said.
About 50 seasoned plaintiffs and defense lawyers, in-house counsel and federal judges attended the April 6 conference in Atlanta, although quite a few more had to participate by phone after severe wind and rain storms cancelled their flights into the city.
Lori Andrus of Andrus Anderson in San Francisco and Adam Moskowitz of Kozyak Tropin & Throckmorton organized the conference for Duke Law.
Alvare said it was key to be able to quantify the gender gap for high-stakes plaintiffs litigation in order to combat it. She said is currently interviewing judges and lawyers in the Philadelphia area with Judge Sandra Moss, now retired from the city’s First Judicial District Civil Trial Division, to come up with answers.
“We want to get this on the radar screen of key judges,” said John Rabiej, the director of the Duke Law Center for Judicial Studies. “If they make the appointments, then law firms and companies will follow.”
THE VOLKSWAGEN EXCEPTION
Alvare is continuing her docket analysis for 2016 and beyond to see if the 2015 spike in female appointments was an anomaly or a “real indicator of progress for female practitioners.”
Rabiej said there are 300 currently active MDLs—but a mere 20 or so of them make up 90 percent of total MDL plaintiffs litigation—encompassing 120,000 individual plaintiffs cases and 35 percent of all pending federal civil cases.
Judges have wide discretion in deciding whom to appoint to lead roles in MDLs, using criteria such as ability, experience, financial resources and ability to cooperate. Surprisingly, Alvare found that the judges’ gender was not a factor in whether they picked men or women.
Alvare analyzed 145 cases with 102 male judges and 43 female judges making appointments—and found that men were five times more likely than women to be appointed to a lead counsel spot, regardless of the gender of the judge. The subject matter of the cases didn’t make much difference either, she said.
She used the case dockets to determine the gender of lead plaintiffs counsel and members of the plaintiffs steering committees, but her study did not consider race, which could not be determined from docket listings.
While only half of the cases had women among the lead counsel, fully 98 percent had men in those positions. Only three cases had all-female lead counsel—the very large Volkswagen diesel emissions case, with Elizabeth Cabraser, a founder of San Francisco plaintiffs powerhouse Lieff Cabraser Heimann & Bernstein, as sole lead counsel, and two small cases where a single female lead was the only leader at all.
The Volkswagen case, which is before U.S. District Judge Charles Breyer of the Northern District of California, will settle for $14.7 billion, pending a final fairness hearing in May. It is the largest consumer class action settlement against a car company in U.S. history.
Judges tend to choose “repeat players,” to lead MDLs, several participants at the conference said, going with proven experience. “Judges have a lot of discretion and a lot of them don’t have much experience with MDLs, so they want experienced lawyers,” Rabiej said.
Among the 50 most frequently appointed plaintiffs lawyers for MDLs that she analyzed, only 11 were women, Alvare said.
Cabraser is one of those repeat players. The Volkswagen diesel emissions MDL is her 18th in a leadership role. “Remember, this is not an honor and it’s not a sinecure—this is a job,” she said. “Judges need leads with the talent and resources to fund the litigation.”
Another reason women might be less represented in MDL leadership is because fewer apply for the roles. For the high-stakes Volkswagen case, Breyer held an unusual open application call, where every applicant could make a two-minute pitch in person. Only 18 percent of about 155 applicants were women, conference organizer Andrus said, and Breyer assembled a leadership team that was 27 percent female.
Cabraser said she thinks the 2015 spike to 27.7 percent for women steering MDLs is going to accelerate.
“Womens’ progress has been invisible for years and now, finally, after years of supporting each other, we have the experience, talent and resources,” said Cabraser, who’s been in practice for 38 years.
She noted that four of the seven federal judges on the panel that decides whether to create an MDL are women, including its chair, Judge Sarah Vance of the U.S. District Court for the Eastern District of Louisiana.
“I think there’s going to be a juggernaut,” she said, predicting that the percent of women in MDL leadership would jump to 35 percent next year. “We women are available now. We’re on a roll.”