An attorney representing Ropes & Gray insisted at a Wednesday hearing that the firm fired a 63-year-old female partner in the fall of 2010 because it no longer made economic sense to keep her, not because it was discriminating or retaliating against her.
Based on that argument, Proskauer Rose labor and employment partner Bettina Plevan attempted to persuade U.S. District Judge John Koeltl to dismiss on summary judgment a lawsuit brought against Ropes in March 2011 by former firm partner Patricia Martone.
While the two-and-a half-hour-long hearing failed to produce a ruling, it did portray Ropes as a place where individual partners don’t know how much compensation anyone but they themselves receive and where management is quick to cast aside aging partners whose business has floundered. Martone, a patent litigator who is now with Morrison & Foerster, claims in her suit that Ropes management undermined her Asia-focused intellectual property practice for years, routinely passing off her clients and cases to younger male partners and eventually terminating her after she complained about being discriminated against.
Both parties agree that Martone, who joined Ropes in a 2005 merger between the Am Law 100 firm and intellectual property boutique Fish & Neave, approached management in June 2010 to request an investigation into what she felt was discriminatory behavior. The firm subsequently hired O’Melveny & Myers to conduct a months-long inquiry, and Ropes chairman R. Bradford Malt informed Martone at a meeting in October that rather than uncovering evidence of discrimination, the inquiry had found the economics of her practice “unsustainable,” according to her complaint. Malt terminated her at that same meeting.
During Wednesday’s hearing, Koeltl zeroed in on the series of events at issue, calling the timing of Martone’s firing so soon after the investigation was completed “troubling.” Koeltl did not rule from the bench, saying at the conclusion of the hearing that he would make a decision in a few weeks and urged the two parties to discuss a settlement in the meantime.
Plevan stressed Wednesday that the timeline was not suspicious and that Ropes would have fired Martone sooner if not for the delay caused by the investigation. Plevan described what she termed a course of “progressive discipline” involving Martone that began with the conclusion of two patent cases in 2007, including one for longtime client Sanyo. “She was never able to replace that work,” Plevan said. “After mid-2007 she never generated any significant business.”
In court filings, Martone tells a different story, describing new work she brought into the firm up until September 2010, the month before she was fired. Martone says she played a key role in helping the firm launch its first international office, in Tokyo, in 2007. The firm sent two male partners in their 40s to work from Japan full time, naming Martone head of U.S. operations for the practice.
The situation between the partners in Japan and Martone quickly deteriorated, however, with the firm criticizing her for being “too controlling” of the Japan practice and asking her to cede responsibility and pass off her clients there to the younger men, according to her complaint. As a result, her business declined from $10 million in 2006 to $1.4 million for the 12 months ending in August 2009, according to an amended complaint filed in July 2011.
Plevan said during Wednesday’s hearing that as Martone’s book of business suffered and her interpersonal relationships with other lawyers in the firm grew tense, management took steps to remedy the situation. By January 2009, the firm had placed her on a “watch list” of partners with soft hours and no big cases on the horizon, although Plevan acknowledged that others on the list were in more serious trouble than she was.
In March 2010, the firm’s evaluations of Martone noted that she had no external prospects for clients and would need to look internally for referrals. Two months later, around the time she approached management about the alleged discrimination, she was identified as one of 10 partners with the lowest viability and no action plan, Plevan said. That same month, according to Plevan, Martone asked firm management if she was going to be fired, and was told there were no immediate plans for that to happen.
Koeltl urged Plevan to explain how the situation eroded so quickly. “She’s told she’s not being terminated,” Koeltl said of the May 2010 meeting, “And until her firing, what’s in between, other than the O’Melveny investigation?”
