Ogletree, Deakins, Nash, Smoak & Stewart and Dawn Knepper, a former nonequity shareholder who has accused the firm of gender bias, have traded new blows in a battle about whether her claims belong in arbitration.
Through her lawyers at Sanford Heisler Sharp, Knepper argued Tuesday in a San Francisco federal court filing that an Ogletree employee arbitration agreement should be disregarded, despite the firm’s claims that the pact applies to her case. Among other arguments, Knepper said she never signed such an agreement and that the firm’s first notice about the agreement came in an email sent in the early morning before a holiday weekend.
“Ogletree disseminated a neutral and misleadingly-titled email to its employees, with a proposed arbitration agreement attached. The firm’s communications about the transaction were ambiguous and inadequate to put employees on notice that failing to act would waive their rights,” wrote Knepper’s lawyers at Sanford Heisler Sharp, a firm that has taken a lead role in a series of gender discrimination suits against large law firms. “Yet, it now claims that plaintiff Knepper’s silence in response to its offer binds her to the agreement’s terms.”
Tuesday’s brief from Knepper comes in opposition to an Ogletree filing in late August that requested the case be transferred to Southern California in light of a provision in the arbitration agreement. In its August filing, the firm argued that Knepper is bound by an arbitration agreement in light of a January 2016 email that the firm circulated internally.
The two sides dispute what impact that email, and Knepper’s alleged response, should have on the gender bias case, which alleges that the labor and employment specialty firm operates under a male-dominated hierarchy that short-changes women on pay and promotions.
Ogletree has denied the allegations of discrimination and has said in statements that its compensation system is fair and equitable. The firm has also announced steps taken internally that, Ogletree said, are designed to promote equity.
The suit itself began in January as a proposed class and collective action. Knepper, now practicing law at Buchalter, was later joined by other named plaintiffs, including former Ogletree equity shareholder Tracy Warren, who also landed at Buchalter.
The recent dispute over the arbitration agreement, however, relates specifically to Knepper—as a former equity shareholder, Warren is bound by a separate shareholder management agreement, while the other plaintiffs are based outside of California and, therefore, their claims belong in other states, according to the firm.
Ogletree has maintained that the January 2016 email provided details on a policy requiring employees to arbitrate disputes they have with the firm. It says that the email put Knepper on clear notice about the arbitration agreement and how to opt out. The email went to all firm staff, including nonequity shareholders and other lawyers, but did not go to equity shareholders in light of their separate shareholder agreement.
Along with the arbitration pact, Ogletree explained in its email that the agreement would become mutually binding on both the firm and individual employees if they continued working there and if they failed to opt out within six weeks, according to the firm’s August court filing. The firm further argued that Knepper, specifically, received a number of notifications about the agreement. Ogletree also said an “email read” receipt backs up the argument that Knepper saw the original email and that she later responded to an email from a firm administrator about the agreement on March 1, 2016—the deadline to opt out of the arbitration agreement.
“Cases show that Ogletree’s implementation of the agreement was sound. Courts regularly find an arbitration agreement binding even where an unsophisticated employee-plaintiff had not signed the form acknowledging receipt of an opt-out provision,” the firm, represented by a team led by Paul Hastings’s Nancy Abell, wrote on Aug. 29. “As a seasoned employment attorney, Knepper cannot credibly argue that she did not understand the agreement or its opt-out instructions.”
Knepper, meanwhile, maintains that she never signed the agreement and has no recollection of receiving the January 2016 email or of sending the March 1, 2016, response that Ogletree points to as evidence that she knew about the agreement. Despite Ogletree’s experience in crafting such arbitration pacts for its clients, the agreement itself and the firm’s communications about it with employees were flawed and should render it unenforceable, Knepper argued.
“Ogletree seeks to characterize two ambiguous documents (an email read receipt and a one-line email from plaintiff) as indisputable evidence that she assented to its confusingly-worded arbitration contract. But this falls far short of the evidence necessary to carry Ogletree’s burden,” Knepper’s lawyers wrote.