Chadbourne Seeks Dismissal of Sex Bias Class Lawsuit

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By Patrick Dorrian

Nov. 14 — Two women suing Chadbourne & Parke for sex bias in pay can’t maintain their lawsuit because as partners, they aren’t covered by federal or local employment discrimination laws, the law firm argued in seeking dismissal of the case ( Campbell v. Chadbourne & Parke LLP , S.D.N.Y., No. 1:16-cv-06832, motion filed 11/14/16 ).

Kerrie Campbell and Jaroslawa Johnson aren’t entitled to the protections of Title VII of the 1964 Civil Rights Act, the federal Equal Pay Act or the other laws under which they sued Aug. 31, the firm said in its Nov. 14 motion. Their status as owners of the firm is clear under the numerous factors the U.S. Supreme Court uses to determine whether a worker is an “employee” of or “owner” in a partnership, Chadbourne said.

Among other things, Chadbourne couldn’t have fired Johnson, who’s no longer with the firm, and can’t fire Campbell, who remains an equity partner, because a partner may only be expelled from the firm on a two-thirds vote of all of Chadbourne’s male and female partners, the firm said in the motion filed with the U.S. District Court for the Southern District of New York.

Campbell and Johnson sued on behalf of a proposed class, but the class allegations also must be dismissed, Chadbourne said. Not only are those claims brought under the same employment discrimination laws under which, as partners, they aren’t permitted to sue, but the potential class really only consists of six or so women, which is too small under federal class action rules, the firm said.

Parties Spar Over Validity of Lawsuit, Motion

Statements provided by the parties Nov. 14 to Bloomberg BNA signal that the lawsuit may not be resolved without a lengthy battle.

“Our motion makes clear that this case never should have been brought,” Chadbourne said through a spokesman. “The plaintiffs as partners of the Firm are its owners, not its employees, and thus are not legally entitled to bring claims against the Firm under the employment laws that they are trying to invoke.”

The lawsuit shouldn’t have been brought as a class action because the claims raised by Campbell and Johnson “are uniquely individual” and can’t be used to “inflate the group they purport to represent to a level that warrants class action treatment under controlling law,” according to the spokesman.

“Notwithstanding the fanfare with which this lawsuit was announced by the plaintiffs, the fact is that it is plagued by fundamental legal defects that require it to be dismissed,” the spokesman said.

Campbell and Johnson, through their attorney, dispute that categorization of their case.

“Chadbourne’s latest filings are simply another attempt to silence two women who had the courage to speak out against the culture of entrenched sexism and chauvinism at the firm,” David Sanford said. “We are confident we will defeat Chadbourne’s motions and ultimately will vindicate the rights of female attorneys at the firm. Chadbourne may continue its assault on the equal rights of female partners but it should have no doubt that Ms. Campbell and Ms. Johnson will continue their pursuit of justice,” he said. Sanford is the chairman of Sanford Heisler LLP.

Clackamas Factors Cited

The two women also aren’t “employees” under the test established by the Supreme Court in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 14 AD Cases 289 (2003), Chadbourne argued in the motion. That’s because as equity partners, the firm lacks or lacked the authority to assign them or to supervise their work; they operate or operated autonomously and don’t or didn’t “report” to anyone at the firm; and they share or shared in the profits and losses of the firm, it said.

In addition, the motion said their partnership status grants or granted them authority to vote and thus influence firm management—including electing members of the firm’s management committee as well as its managing partner. It also said the partnership agreement they both signed states that they aren’t or weren’t employees of the firm.

That there aren’t enough potential class members is clear from the fact that there are only 20 female current or former partners in the U.S. and 14 of them sent a letter to class counsel Sept. 12 expressing their “strong disapproval” with Campbell’s decision to bring a class action allegedly seeking to represent their rights, the firm said.

The class allegations also are deficient under Rule 23 of the Federal Rules of Civil Procedure and controlling Supreme Court precedent because they don’t identify a question of law or fact common to the proposed class as a whole, Chadbourne added. Rather, the alleged common questions are “just restatements” of the same general theme that female partners should be paid more, the firm said.

The proposed class is further plagued by unavoidable conflicts among the class members regarding the firm’s allocation of pay among its partners, and the proposed class members aren’t “similarly situated” enough to support a collective action under the Equal Pay Act, according to the motion. Because the women’s federal claims must be dismissed, the court should decline to entertain their state law claims as well, Chadbourne said.

Campbell originally sued the firm on behalf of herself and similarly situated women. Her complaint was amended Oct. 27 to add Johnson as a named plaintiff and to add six male Chadbourne partners as named defendants. In addition, the amended complaint increased the damages sought from $100 million to $155 million.

Campbell is a member of Bloomberg BNA’s Product Safety & Liability Reporter advisory board.

Jeremy Heisler and Andrew C. Melzer in New York, Kevin Love Hubbard in San Francisco and Saba Bireda in Washington, all of Sanford Heisler, also represent the proposed class. Kathleen M. McKenna, Evandro C. Gigante and Rachel S. Fischer of Proskauer Rose LLP in New York represent Chadbourne.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

For More Information

Text of the memorandum of law of supporting the firm’s motion is available at http://www.bloomberglaw.com/public/document/Campbell_v_Chadbourne__Parke_LLP_Docket_No_116cv06832_SDNY_Aug_31/3.

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