Top Defense Results: Pao v. Kleiner Perkins Caufield & Byers

Pao v. Kleiner Perkins Caufield & Byers

Gender discrimination, retaliation

San Francisco County

Superior Court Judge Harold E. Kahn

Defense lawyers: Orrick, Herrington & Sutcliffe LLP, Lynne C. Hermle, Jessica R. Perry, Joseph C. Liburt, Shannon B. Seekao, Megan M. Lawson

Plaintiff's lawyers: Rudy, Exelrod, Zieff & Lowe LLP, Alan B. Exelrod, David A. Lowe, John T. Mullan; Lawless & Lawless, Therese M. Lawless

Few plaintiffs manage to put an entire industry on trial, but Ellen Pao's gender discrimination suit against venture capital leader Kleiner Perkins Caufield & Byers spotlighted the pervasive meme that Silicon Valley and the entire tech sector remains a man's world.

Orrick, Herrington & Sutcliffe LLP's trial team, defending Kleiner Perkins, had to struggle with the facts in the courtroom while keeping an eye on its broader implications for the industry. An intense media focus on the case kept the pressure on.

And even a San Francisco Superior Court jury's defense verdict on all claims didn't end the case. Pao v. Kleiner Perkins Caufield & Byers, CGC-12-520719 (SF Sup. Ct., filed May 10, 2012).

Pao contended that bias extends even to the civil justice system after San Francisco County Superior Court Judge Harold E. Kahn ordered her to pay $276,000 in defense fees. That put her at a further unfair disadvantage, she protested.

"Forcing plaintiffs in civil rights actions to pay for defendants' costs is just wrong," Pao said. "Even the courts do not provide a level playing field, and it is hard to afford justice."

Orrick's team, led by partners Lynne C. Hermle and Jessica R. Perry, were able to prevail by undermining Pao's claim that she lost opportunities due to her gender. Hermle consistently portrayed Pao as a junior partner who failed because of her own shortcomings as an investor, as well as someone whose high opinion of herself prompted conflict with colleagues.

"Ellen Pao's failure as an investing partner had nothing to do with her gender," Hermle told the jury in closing arguments Tuesday.

After the first weeks of trial showcased Pao's complaints, some questioned Kleiner Perkins' decision not to settle the case.

After the defense prevailed, the win provided a road map to companies mired in widely covered employment litigation, Orrick said in a statement.

"We were fighting against a backdrop of everyone's perception of a Silicon Valley stereotype," Perry said. "We had to drill down to the evidence. When Pao said she had to sit in the back of the room at meetings, for example, we had seating charts showing her in the front row."

After the outcome became clear, the court of public opinion remained in session.

"During trial, we were very focused on the legal case, not on talking to the press," Perry said. "Once it was over, we could be part of the discussion about the place of women in Silicon Valley. We knew, and we showed, that Kleiner was a leader in gender diversity."

And the Orrick team, composed mostly of women from the firm's Menlo Park office, was its own tacit argument that stereotypes don't always hold true.

- John Roemer