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Et Tu, Robbie Kaplan?

Vivia Chen

November 18, 2020

1000px-Robbie_Kaplan

Oh, say it ain’t so! Roberta Kaplan, women’s rights warrior extraordinaire, has gone to the dark side—or so it appears.

That was certainly my reaction when I learned that Kaplan, one of the founders of the Time’s Up Legal Defense Fund and defender of gay marriage, is now representing Goldman Sachs and Karen Seymour, its GC, in a discrimination lawsuit brought by Marla Crawford, an ex-associate general counsel at the bank.

The facts of the case are a bit convoluted, though replete with the stuff of soap opera: love, adultery, a scolding wife and a damsel in much distress (check out the account in U.K.’s DailyMail—much juicer than the coverage in the U.S.). In a nutshell, Crawford claims that she was fired after she made a stink that Darrell Cafasso, a top Goldman lawyer, sexually preyed on one of her friends, a more junior female lawyer at the bank. That female lawyer (identified only as “Jane Doe”) later retained Gloria Allred, who brokered a settlement with the bank that was subject to a non-disclosure agreement.

As you might have read, Crawford has penned an open letter to her former employer (“Women Are Being Silenced at Goldman Sachs”) in which she asks that Goldman release her and all other employees from confidential arbitration and non-disclosure agreements (NDAs). And yes, she goes to town on Kaplan, citing how Kaplan and Time’s Up have condemned NDAs.

“Goldman’s position that my claims must be arbitrated in secrecy sends a terrible, anti-#MeToo message to other women at Goldman that the Bank does not value transparency and does not believe those who raise claims are entitled to a fair process of adjudication,” writes Crawford in her letter. “This position will set Ms. Kaplan’s work—and the good work of many others at Time’s Up and otherwise—backward rather than forward.”

Let’s be perfectly clear: There is nothing wrong with representing Goldman in this matter. Yes, it’s a swaggering symbol of capitalism, but representing Goldman isn’t automatically vomit-triggering like defending Harvey Weinstein or Jeffrey Epstein or making a dubious challenge to the presidential elections. At its heart, Crawford’s suit is more or less another dispute between an employer and a fired employee.

So why would Kaplan bother with this case?

Douglas Wigdor, Crawford’s lawyer, makes no secret of what he thinks is the motivation. “Everyone has their price,” he said. “I doubt [Kaplan] said, ‘I’ve always dreamed of representing Goldman. She must be paid royally.”

Sharon Nelles, Sullivan & Cromwell’s managing partner for litigation, disputes that view. Nelles suggests that what motivates Kaplan is her belief in the cause: “She fights for what’s right, even when it’s hard or unpopular.” Nelles emphasizes that Kaplan is also representing Seymour, whom Nelles calls “one of the most admired and respected senior women in law and in investment banking” and “a trailblazer for all women.” (It should be noted that Seymour and Cafasso are former partners at S&C.)

Asked for comment, Kaplan, through her firm’s spokesperson, issued this statement: “It is our policy not to comment on details relating to our decision to take on a specific representation. However, we can say that our firm stands proudly behind our values as well as our unwavering commitment to obtaining justice for all of our clients.”

Perhaps Kaplan was moved to take on this case because she knows Seymour personally and feels the GC is being singled out unfairly. Or perhaps Goldman is simply too hot a client to pass up. But does any of it matter?

Because fair or not, Crawford has made the issue of NDAs a centerpiece, even though she herself didn’t sign one and is arguably piggybacking on Jane Doe’s NDA to push her case. The fact is, she and her lawyers are deploying Kaplan’s work for Time’s Up—particularly her public condemnation of NDAs—using it against her. (On her firm’s website, Kaplan praises legislative action that bans workplace non-disclosure agreements.)

And why not? Calling for Goldman to release all employees (former and present) from NDAs might be for public show—but it’s effective.

Which goes back to my original point: Goldman is entitled to representation, but should Kaplan be the one to do it?

From Goldman’s perspective, I can see why Kaplan is a clever hire. It’s potent symbolism to trot out a feminist icon to argue your case against a woman who’s claiming retaliation.

But from Kaplan’s vantage point, the upside is shakier. From what I can tell, this is not a once-in-a-lifetime case she has to take. And it’s not like poor Goldman Sachs can’t get quality representation elsewhere. Kaplan might win the case, but at what price to her brand as a fighter for women?

Robbie, you don’t need this case.

vchen@alm.com

Twitter: @lawcareerist

Comments

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Question: Why is it that women (as opposed to men) are admired only if they pass moral scrutiny? Shouldn't we be happy Kaplan has made the anti-NDA efforts she has made and recognize we have no right to control her client decisions.

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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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