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Can Jones Day Keep It All Locked Up?

Vivia Chen

July 5, 2018

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Well, I guess you can't blame a firm for giving it the old college try.
 
As I wrote in my last post about the gender discrimination suit against Jones Day ("Jones Day Is So Secretive About It's So Secretive"), the firm won't allow a sliver of sunlight on the case. It is so determined to block the public from glimpsing any details about the litigation that it has asked the court to keep all documents under seal, including the complaint filed by former Jones Day partner Wendy Moore—even though the complaint has been in the public eye for two weeks. (Query: Does that mean that the firm is asking the court to make all media outlets scrub all mention of the complaint?)
 
In my humble opinion, it's a wild, bodacious move. So here's what we all want to know: Will Jones Day succeed in keeping everything under wraps?
 
"Most judges won’t seal without a good reason," says Kathleen Peratis, a partner at Outten & Golden, an employment firm in New York. 
 
So far, of course, we don't know the reason, since Jones Day is also keeping that a secret.
 
But we can guess that it probably has something to do with its black box compensation system in which no one—associates or partners—has any idea what others make and is forbidden to ask. (Another oddity is Jones Day partners are also not allowed to inquire which partners have equity.)
 
Jones Day's request to seal documents is atypical in this matter and could face greater scrutiny. "The firm isn't asking the court to seal documents to protect its clients' confidences but to protect the firm's own non-public information," says Bruce Green, a professor at Fordham Law School and former prosecutor in the Southern District of New York.
 
"Courts generally have been become more hesitant to seal civil litigation records in employment cases," says Gerald Hathaway, an employment partner at Drinker Biddle, adding that the firm might be over-reaching. "I note that the firm is representing itself, and there may be pressure on the lawyers handling the case to be overly aggressive, and if they disagreed, the dynamic of law firm life is that it would be difficult for those lawyers to push back." (Remember, the former head off Jones Day's San Francisco office —now, of counsel—Robert Mittelstaedt, the father in-law of the $810K associate, is representing the firm.)
 
So how will Jones Day push its argument? "The parties will probably contest whether Ms. Moore breached her partnership agreement with Jones Day, or her fiduciary duty to her former partners, by disclosing certain private information in a lawsuit," says Green "But even if she did, Jones Day may not be entitled to a sealing order that is in derogation of the public interest in judicial openness."
 
At a time when the gender pay gap is a huge topic, I'd argue that there's a strong public interest in getting to the bottom of any gender discrimination dispute, particularly one that's anything but transparent.
 
 "Jones Day can dispel [accusations of discrimination] by simply releasing a breakdown of how men and women are paid," says Harvard Law School lecturer Ian Samuel, a former Jones Day associate, who told me a few weeks ago that there's discontent among the firm's lawyers about the black box system. "But it won't do it."
 
Indeed, it's unlikely that Jones Day will reveal anything without kicking and screaming. And that, of course, makes all of us curiouser and curiouser.
 
vchen@alm.com
Twitter:@lawcareerist
 

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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