Law360 (September 4, 2019, 9:11 PM EDT) — BigLaw heavyweight Jones Day doubled down Wednesday on its contention that former associates suing it for systemic gender discrimination improperly revised their complaint, rebutting the women’s argument from a day earlier that they updated their claims in line with procedural rules.
In a reply brief, the firm reiterated its earlier request to U.S. District Judge Randolph Moss that he strike the former associates’ Aug. 16 third amended complaint, which Jones Day claims wasn’t authorized.
A day earlier, the women had filed an opposition to Jones Day’s motion to strike the Aug. 16 pleading, which the women said complied with federal civil procedure rules. They also contended that Jones Day “omitted key facts” about the first two amended complaints when it argued that the women had already used up their only chance to revise their claims as a matter of right without first having to obtain approval from the court or the firm.
Since their first two amended complaints — one was filed on June 24 and the other on Aug. 13 — were filed pursuant to court orders, the women argued that they still possessed the ability to file an amended complaint without having to get outside approval within 21 days of a defendant’s answer, which the firm filed on July 26.
The updated pleading made various grammatical fixes and added or clarified factual allegations that were included in the earlier versions. Among them were claims that painted the firm’s managing partner, Stephen Brogan, as the person who called the shots on policies that left female lawyers behind, and race discrimination claims under Section 1981 of the Civil Rights Act of 1866 on behalf of plaintiff Katrina Henderson.
While the women said in their opposition that they “believed in good faith … that their third amended complaint was properly filed,” they asked Judge Moss to consider both the amended pleading and the opposition as a request for permission for the Aug. 16 filing to be accepted if he disagrees with their position.
But in Wednesday’s reply brief, Jones Day argued in part that the women’s opposition “suggests that they pulled a fast one on the court and Jones Day” by inserting the word “order” on a scheduling stipulation associated with their June amended complaint. The firm also argued that the judge shouldn’t consider any filings to this point in the case as a request to allow the third amended complaint.
“If plaintiffs want to seek leave to amend, they should file a written motion explaining why granting leave for a third set of amendments — which include significant new allegations and even an entirely new cause of action asserting race discrimination — would be appropriate at this point in the litigation. And Jones Day should have the opportunity to oppose that motion.”
Deborah Marcuse of Sanford Heisler Sharp, an attorney for the former associates, told Law360 on Wednesday that the women “are startled by the suggestion that they have ‘pulled a fast one’ on Jones Day by asking defendant to read a filing and confirm its consent thereto.
“They look forward to the court’s resolution of Jones Day’s pending motions,” Marcuse said.
Counsel for Jones Day didn’t respond to a request for comment.
The proposed hybrid class and collective action accuses Jones Day of underpaying women, fostering an environment that devalues their work and pushing them out when they have children. It was filed in April by former California associates Nilab Rahyar Tolton and Andrea Mazingo and four Jane Does.
Since then, Meredith Williams, Saira Draper and Jaclyn Stahl — formerly Jane Does 1, 2 and 3 — attached their names to the suit after Jones Day sought for months to make them give up their pseudonyms, claiming that being unable to name its accusers hampered the firm’s defense.
Henderson, an in-house Amazon Studios attorney, also opted into the suit as a named plaintiff.
Jones Day has maintained its innocence, accusing the former associates in a late July answer of leaning on “stereotypical tropes” while overlooking that they were let go for poor performance or left of their own accord.
Another woman who was originally named as Jane Doe 4 dropped off the case after Judge Moss on Aug. 7 denied her request to proceed using a pseudonym. That order prompted the filing of the Aug. 13 amended complaint. The judge said in a minute order Tuesday that he will release a redacted version of a decision he reached rejecting Doe 4’s request to remain anonymous.
Elsewhere in the case, Jones Day also filed a reply brief Tuesday in support of its pending motion for partial judgment, which seeks to eliminate various allegations form the suit, including all the claims asserted by Williams and Henderson. The firm argued that the former associates haven’t been able to point out any specific employment practice that hurts women at Jones Day.
In both of its reply briefs this week, Jones Day urged Judge Moss to rule on its motion for partial judgment before considering whether to let the women amend their suit for a third time.
“For efficiency’s sake, any motion for leave to further amend should await the court’s ruling, so that any amendment can properly take account of the court’s legal determinations about the pleading requirements,” Jones Day said in Wednesday’s court filing.
The women are represented by Deborah K. Marcuse, Kate Mueting, David W. Sanford and Russell L. Kornblith of Sanford Heisler Sharp.
Jones Day is represented in-house by Mary Ellen Powers, Beth Heifetz and Terri L. Chase.
The case is Tolton et al. v. Jones Day, case number 1:19-cv-00945, in the U.S. District Court for the District of Columbia.
–Additional reporting by Braden Campbell. Editing by Haylee Pearl.