July 9, 2020 / 8:40 PM / a month ago

In bias case, Jones Day pushes novel theory to block retaliation claim over press release

(Reuters) - Should a press release issued in response to a lawsuit be treated as a nonactionable “incident of litigation”?

That’s Jones Day’s bold theory in a new brief opposing a motion by former Jones Day associates Julia Sheketoff and Mark Savignac to add retaliation claims to their year-old gender discrimination and Family and Medical Leave Act suit against the firm.

Last summer, Sheketoff and Savignac – a highly-credentialed married couple whom Jones Day recruited to its appellate practice after U.S. Supreme Court clerkships – were on the verge of filing a lawsuit alleging, among other claims, that the firm’s parental leave policy is discriminatory because women receive more time than men. A reporter from The New York Times contacted Jones Day to ask about the allegations in the soon-to-be-filed suit.

After Sheketoff supplied the firm with a draft of the complaint, Jones Day provided the Times with a stinging response that not only refuted the suit’s allegations about its parental leave policies but also offered personal insults about Sheketoff and Savignac.

Sheketoff, the firm said, was not acting in good faith in asserting a “frivolous” accusation that her income was affected by gender discrimination. Savignac was “self-indulgent,” the release said, and was fired after sending Jones Day an “intemperate” email that displayed “poor judgment, a lack of courtesy to his colleagues, personal immaturity, and a disinterest in pursuing his career at Jones Day.” Jones Day posted the statement on its website when the lawsuit hit the docket in federal court in Washington, D.C.

The suit received considerable media coverage at first, as you would expect from litigation involving two sought-after young lawyers who laid out detailed allegations against a major firm. The attention died down as the two sides briefed Jones Day’s motion to dismiss, though the firm’s statement about Sheketoff and Savignac remained on the Jones Day website.

The former associates moved on June 30 to amend their complaint to add retaliation claims based on the Jones Day press release. They proposed a 17-page amendment detailing why the firm’s assertions about them were untrue and intended to harm their careers. Sheketoff, for example, provided specifics about her income and billable hours to back her claim that she was a victim of a particular partner’s gender bias. Jones Day’s “willfully false and malicious assertion” that she lacked a good-faith basis for that allegation, the motion said, “threatens her career, her reputation and her livelihood. If Jones Day’s charge were believed, it would subject Julia to sanctions as well as disbarment, ending her career as an attorney.”

The brief similarly disputed Jones Day’s depiction of the email that Savignac sent to a Jones Day partner and high-ranking human resources executive. Savignac was as courteous and professional as a lawyer could be in a communication accusing his firm of gender discrimination and warning of litigation, the brief said. And the email was not the reason Jones Day fired Savignac, he and Sheketoff said. He was fired in retaliation for his assertion of gender discrimination, the brief said. By suggesting instead that he was fired for sending an email, Jones Day was engaging in “a false and malicious public accusation of extraordinary shortcomings.”

Sheketoff declined to comment. Jones Day partners Traci Lovitt and Terri Chase did not respond to my email.

Jones Day’s brief opposing the former associates’ motion to amend their complaint is only six pages. And it only dedicates a footnote to defending the substance of the firm’s press release, describing Jones Day’s statements as “factually true, rational interpretations of disclosed facts or non-falsifiable matters of opinion.”

Mostly, the brief argues that employers facing discrimination claims have a right to defend themselves with counterclaims and answers in court – and that Jones Day’s press release was similarly a “a natural and inevitable incident of litigation” that cannot give rise to retaliation claims.

“Responding to and defending against a lawsuit is not — and cannot be — ‘retaliation’ for the suit’s filing,” the brief said, pointing to 1998’s Steffes v. Stepan Co, (144 F.3d 1070), in which the 7th U.S. Circuit Court of Appeals said that conduct in litigation can rarely give rise to claims of retaliation.

A press release is not the same as a countersuit or answer to a complaint, but Jones Day argues that it might as well be. The press release, it said, was “an out-of-court summary of the firm’s defense.” It “cannot possibly matter,” the firm said, that Jones Day presented its defense in a press release rather than in an answer to the complaint or a dismissal motion explaining why the claims are baseless.

No reasonable employee, the firm said, would be more intimidated by the threat of a hard-hitting press release than by the inevitable prospect of tough depositions and vigorous defense motions. So a press release can no more be an act of retaliation, under Jones Day’s theory, than non-actionable litigation filings.

The brief does not cite any precedent that is directly on point. Jones Day quoted a 1985 ruling from a federal trial judge in the District of Columbia in Coleman v. American Broadcasting Company (1985 WL 365) who dismissed a defamation claim based on ABC’s one-sentence assertion that it had reviewed sexual harassment claims against an employee and found them to be meritless. The judge said that ABC’s statement was protected opinion and that imposing liability for the press release would be “tantamount to imposing a restraint on its ability to issue any comment on the litigation unless and until it received a favorable jury verdict.”

Jones Day’s press release about the Sheketoff and Savignac case was considerably more vehement than ABC’s anodyne statement, and it’s making a bolder claim than ABC – that its press release is not only protected speech but entirely non-actionable. Let’s see if that flies.

The views expressed in this article are not those of Reuters News.

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