Yale Law School and 13 of the nation’s other top legal institutions made waves last month when they announced that they would ask law firms interviewing on campus to complete a survey and openly disclose whether they will require summer associates to submit to forced arbitration provisions and related nondisclosure agreements.
On Monday, students from those law schools released the results of that survey, which found that, while many firms will not require their summer associates to sign arbitration agreements, some are still pushing such deals on their young legal talent.
But perhaps more surprising was that of the nearly 400 law firms and legal organizations surveyed by students from 50 leading law schools, most firms chose not to respond.
“Almost half of the firms who received the survey—nearly two hundred—have decided to hide behind a wall of secrecy,” said a statement from Molly Coleman, a rising second-year law student at Harvard Law School and one of the organizers of the campaign. “Especially in the #MeToo era, we are disheartened that they are unwilling to take a simple step to engage on this important issue.”
Top Am Law 100 and Global 100 firms such as Allen & Overy; Cadwalader, Wickersham & Taft; DLA Piper; Faegre Baker Daniels; Kirkland & Ellis; Littler Mendelson; Nixon Peabody; Ogletree, Deakins, Nash, Smoak & Stewart; Reed Smith; Seyfarth Shaw; Sidley Austin; and Squire Patton Boggs did not respond to the survey.
Debate over the inclusion of increasingly controversial arbitration provisions for summer associates began either this year after former Jones Day associate and current HLS lecturer Ian Samuel tweeted that Munger, Tolles & Olson was requiring its summer associates to sign mandatory arbitration and nondisclosure agreements in their employment contracts.
The firm quickly backtracked, announcing that it would be doing away with mandatory arbitration provisions and related nondisclosure agreements for its summer associates. Orrick, Herrington & Sutcliffe and Skadden, Arps, Slate, Meagher & Flom also quickly followed suit.
But the fervor Samuel’s tweet generated in light of the #MeToo movement prompted law students across the nation to petition their university’s administrations to require employers recruiting on campus to do away with forced arbitration provisions.
“Every law school’s paramount responsibility is to ensure the well-being and safety of students before and after graduation,” said a statement from Ata Akiner, a third-year law student at the Georgetown University Law Center and a former trade analyst at Curtis, Mallet-Prevost, Colt & Mosle. “This nationwide student coalition will ensure that our schools fulfill that obligation.”
Despite the large number of firms that did not respond, five firms—Cooley; Drinker Biddle & Reath; Knobbe, Martens, Olson & Bear; Paul Hastings; Stoel Rives and Varnum—said they would require their 2019 summer associate classes to be subject to mandatory arbitration provisions for employment-related disputes. (Click here for a complete list of firms and legal organizations that do not require their summer associates to sign forced arbitration agreements.)
“Historically, we have asked all employees to sign a mutual mandatory arbitration provision that requires all disputes between Cooley and its employees to be resolved through JAMS arbitration,” said the Am Law 100 firm in its survey response.
And going forward Cooley will continue to do so, but the firm said that its mandatory arbitration provision will expressly exclude harassment and/or discrimination claims brought by the employee, unless the employee chooses to arbitrate those claims.
Outside of summer associates, the law students’ survey also asked firms to report if they required incoming associates or other attorneys to agree to mandatory arbitration provisions.
Of the firms that responded, 17 answered in the affirmative: Allen Watkins Leck Gamble Mallory & Natsis; Alston & Bird; Cooley; Drinker Biddle & Reath; Edelson: Fenwick & West; Gibson, Dunn & Crutcher; Jeffer Mangels Butler & Mitchell; Knobbe, Martens, Olson, & Bear; McDermott Will & Emery; Miller Canfield Paddock and Stone; Paul Hastings, Selendy & Gay; Stoel Rives; Thompson Coburn; Varnum; and Wilson Sonsini Goodrich & Rosati.
Like Cooley, Selendy & Gay, a newly-formed litigation boutique based in New York, has a mandatory arbitration provision that excludes allegations or claims of sexual harassment.