November 3, 2021

New rape accusation shows why O'Melveny's "independent investigations" aren't trustworthy

       As I explained previously, one way that O'Melveny makes money is by conducting sham "independent investigations." The risible nature of such investigations is so well-known that it's now in popular television. Just last month in the hit series Succession, an executive was accused of sexually assaulting women who wanted entertainment jobs. (And these were valid accusations; the other executives knew that he did this.) As they strategized how best to get rid of the matter, the company's general counsel suggested hiring a firm like O'Melveny to do an independent investigation.

Chief Executive Logan Roy: Everyone, let's go.

General Counsel Gerri Kellman: Okay. Great. So, I suggest I call DOJ and just right away let them know how horrified we were to learn of these, um, allegations and that we intend to form a special committee and we can tell them which white shoe law firms, I have ideas, we are considering to thoroughly investigate and promptly report back their findings.

Succession, Secession (HBO television broadcast Oct. 17, 2021), script available here. It's another example of the American Bar Association and state bars failing to regulate the profession in a way that maintains the public's esteem. Any way, a particularly brazen example of this just popped up in the news.

       Back in 2018, the actress and model Kate Upton accused Guess founder Paul Marciano of sexual assault. In response, Guess hired O'Melveny to perform an "independent investigation" of her allegations and decide if he had done anything wrong. Shocked that Mr. Marciano's "personal lawyer" would be hired for that role, Ms. Upton protested publicly, after which Guess used another law firm to conduct the investigation. (See this prior post for the relevant links.)

       In January of 2021, another woman accused Mr. Marciano of sexual assault. Who defended Guess in that matter? O'Melveny & Myers. (Oddly, the word O'Melveny doesn't appear in the case's docket, but the two lawyers fighting the victim, Catalina Vergara and David Marroso, are O'Melveny lawyers. See links one and two. O'Melveny's Dan Petrocelli is the lead lawyer on the case.)

       In that case, O'Melveny filed a motion to force the matter into confidential private arbitration. Some view this as a dirty tactic, as it is designed to move the matter out of the public court system, where a jury would decide, and into into a private forum where a possibly biased arbitrator will decide. In fact, numerous companies have stopped using this tactic in sexual harassment matters, because it harmed their reputation; for example, Facebook, Uber and Microsoft. New York State even passed a law banning such forced mandatory arbitration in sexual harassment matters. As Justice Ruth Bader Ginsburg wrote, forced arbitration reflects “inequality of bargaining power,” thwarts “effective access to justice” and undermines “the well-being of vulnerable workers.” (Sourced from this article by Justice Goodwin Liu.)

       Unfortunately for the young woman, the judge enforced Guess's mandatory arbitration provision and so we don't have any further updates on her case. But last week, a new woman accused Mr. Marciano of rape. A copy of the complaint is here. The case's docket doesn't yet show who will defend the company, but I have a feeling that it'll be O'Melveny & Myers. [Addendum: Indeed it is O'Melveny. The docket shows the aforementioned Ms. Catalina Vergara filing a document on behalf of Guess on November 16.]

       Remember, O'Melveny -- the firm fighting tooth and nail against the alleged victims -- was going to do an impartial and independent investigation of the sexual assault allegations against Mr. Marciano.
O'Melveny, OMM, white collar, investigation, Dan Petrocelli, David Marroso, Catalina Vergara, sexual assault, sexual harassment