Trial on MoFo bias claims could hurt everyone, jurist says

U.S. Magistrate Judge Jacqueline Scott Corley said Thursday she was reluctant to hold a jury trial in a case involving two former Morrison & Foerster LLP attorneys, who alleged the firm engaged in discriminatory practices on gender, pregnancy and maternity.

Acknowledging that the issues at stake were nuanced, Corley said she nevertheless feared "a trial is going to end up hurting everyone."

"When this case was filed, it was a different time than we're in right now, and things have changed in the world dramatically. And if there's one thing we all learned, it's that life is fragile and life is short," Corley said, referring to the COVID-19 pandemic at a hearing concerning two motions Morrison & Foerster filed for summary judgment. "Sometimes as lawyers we forget that litigation can be so harmful, can be so damaging emotionally to people."

Corley offered to refer the case to U.S. Magistrate Judge Virginia K. DeMarchi, who had told Corley she was willing to meet with the parties in March. Corley said she would likely set an August date herself if the parties were still interested in a jury trial. "This briefing has shown there's a lot to be lost from continuing to litigate this case," she said.

Plaintiffs Sherry William and Joshua Ashley Klayman were among a larger group of female attorneys who had filed the lawsuit against Morrison & Foerster. In December 2019, the other five plaintiffs settled their individual claims, dropping their class allegations. William and Klayman asked for a jury trial when they filed an amended complaint last February. William et al. v. Morrison & Foerster LLP, 3:18-cv-02542-JSC (N.D. Cal., filed April 30, 2018).

William and Klayman, respectively, worked in the finance departments at Morrison & Foerster's Los Angeles and New York offices. Both alleged they were denied advancement opportunities when they became pregnant, and said the firm retaliated against them when they complained about bias.

In two motions for summary judgment, Morrison & Foerster addressed each attorney's claims, and alleged they failed to succeed at the firm because they underperformed and made poor choices.

On Thursday, Carolin Guentert, senior litigation counsel at Sanford Heisler Sharp LLP, said William was assigned virtually no work by her supervisors after she returned from maternity leave. The firm "used that justification, low billable hours, to terminate her illegally," Guentert said.

But Michele L. Maryott, a partner at Gibson, Dunn & Crutcher LLP who represents Morrison & Foerster, disagreed. Maryott argued William "knew she was the weakest link in terms of her performance," so it would not be reasonable for the court to conclude William's supervisors assigned her less work because she went on maternity leave.

"To the extent there was work available it went to the people who were most capable of doing it," Maryott said, adding that another female attorney at the firm had gone on maternity leave at the same time William did, and received work.

But Corley said the plaintiffs' argument was not that Morrison & Foerster automatically discriminates against anyone that goes on leave. "It's the old trope that the woman who has the kids has to be the superstar to succeed," she said. "It's not that you can't succeed, it's that you have to work harder or be better to do it. That's the argument."

Rachel S. Brass, another Gibson Dunn partner, meanwhile argued Morrison & Foerster had legitimate reasons for not promoting Klayman, the second plaintiff, to partner. The plaintiff had alleged she was never considered for the position, despite performing partner-level work. Klayman specialized in cryptocurrency, blockchain and smart contracts.

"You have people saying blockchain is bad. You have people saying she has communication problems. You have people saying she has judgment problems. You have people saying that her billing isn't efficient," Brass said of Klayman. "It's not a graduation. You have to prove a full package and I encourage you to look at the partnership memos of people who actually are promoted and compare those memos to what is in the record as to Ms. Clayman."

Lucy Zhou, a Sanford Heisler associate who represented Klayman and said earlier that Klayman's direct supervisor suggested she needed to work through her maternity leave to be considered for a partner position, responded, "Plaintiffs have provided here direct evidence of Morrison's discriminatory intent."