Winston & Strawn can’t force ex-partner into arbitration

A 1st District Court of Appeal ruling that rejected Winston & Strawn LLP's arbitration requirement in a sex harassment claim will remain in place after the U.S. Supreme Court denied a cert petition on Monday.

The decision means a gender discrimination lawsuit against the firm by former partner Constance Ramos can proceed in San Francisco County Superior Court, where it had been stayed as defense attorneys at Orrick, Herrington & Sutcliffe LLP sought to reverse the appellate court decision that said Judge John K. Stewart erred when he moved the case to arbitration.

It evoked mixed reactions from attorneys immersed in the arbitration and gender-based claims at the heart of the case, which is among a growing crop of discrimination lawsuits against major law firms.

Deborah K. Marcuse of Sanford Heisler Sharp, LLP, which represents plaintiffs in several cases, said she hopes it will persuade other firms and companies to stop forced arbitration, which she said has been part of "a disturbing trend in the opposite direction" through recent case law.

"Thanks to Ms. Ramos and her legal team, the tide may be turning in this regard," Marcuse wrote in an email. "With luck, this decision will convince a new crop of law firms and other companies that forced arbitration is bad for business."

Sarah Kelly-Kilgore, a partner at Greenberg Gross LLP who represents ex-partner Tracy A. Warren in a lawsuit against Ogletree, Deakins, Nash, Smoak & Stewart, P.C., said the case "illustrates that courts will continue to protect employees against overreaching employment arbitration clauses."

Other attorneys lamented the cert denial as harmful to federal arbitration policy.

Steven B. Katz, a partner at Constangy, Brooks, Smith & Prophete, LLP, said the "unfortunate" decision is "quite predictable." The U.S. Supreme Court "is institutionally predisposed to resolving disagreements between the lower courts," and California's history of short shrifting the Federal Arbitration Act "rarely results in the sort of conflicts that the Supreme Court focuses on because these issues rarely arise in courts outside of the state."

"The Court has limited time to devote to correcting California's errors, and is understandably loathe to do so term after term," Katz said in an email.

Glenn A. Danas, a partner at Robins Kaplan LLP,, said the high court could be fine with how the appellate court applied a key state high court ruling, Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000), or it could be waiting for a different case.

"Maybe the court is waiting for a California decision that applies Armendariz in a class setting," Danas said.

Orrick attorneys representing Winston & Strawn petitioned the court in May after the state Supreme Court declined to review the 1st District's decision, which reversed Stewart's order that Ramos was bound to arbitrate by a clause in her partnership agreement.

Ropes & Gray LLP filed an amicus brief in support of review, saying the Ramos decision "will have far-reaching consequences for law firms and their clients" if the high court didn't intervene. The brief said publicly litigating partnership disputes "carries the unique and present risk of disclosing client secrets" and other confidential firm information. The brief also said the appellate decision contradicts Armendariz and in turn "has called into question arbitration provisions in the partnership agreements of every law firm in the country with an office in California."

It was part of what Ramos' lawyers described as a "breathless chorus of amicus briefs." Their opposition to the cert petition said Winston Strawn's attorneys spent 24 pages discussing and often misconstruing Armendariz "while rushing through the facts of this case in less than two."

"Despite Winston & Strawn's desire to change the subject, the 'overly harsh' terms of its own Partnership Agreement drove the lower court's opinion -- and California is far from an outlier in finding terms like these unconscionable," according to the opposition, filed by Karla Gilbride of Public Justice, P.C. and Noah D. Lebowitz, a sole practitioner in Berkeley.

Lebowitz said Monday Ramos is "essentially being blackballed in the industry" as no firm will hire her as her lawsuit is pending.

"But her perseverance has prevailed and we can now proceed with proving her claims and showing that Winston & Strawn considered her to have no independent career or worth; that her only value was as an appendage to a senior male partner," Lebowitz wrote in an email. "What Winston did not count on is that Ms. Ramos has a spine of steel."

Winston & Strawn's Orrick team includes Lynn C. Hermle of the Menlo Park office and E. Joshua Rosenkranz of the New York City office, who is counsel of record for the cert petition. Neither was available for comment Monday.