April 9, 2022

If a minority sues for rape or discrimination, use one of their people to fight them

       It's been a fortunately quiet two months here. I saw the article about how O'Melveny hijacked the governor's office to help its former client, at the expense of the people the governor is supposed to serve. But I had already written about that last year, and had written about O'Melveny's "monetize government" ethos two years ago. Then a few weeks ago, the alleged rape victims who O'Melveny said it would help -- only to fight them -- revealed their identities in a press conference. But I had already written about their story too. So it's been two months without anything new to write about. Great job O'Melveny; keep it up. . . . Well, actually, the press conference does segue into a topic.

       When I originally wrote about the rape case, I was surprised to see that Catalina Vergara was assigned to it. She worked on ERISA and financial services matters. Why was she now on a rape case? Then I saw the press conference, and saw that two of the alleged rape victims were Latina. Ohhhh I think I might know what happened here. You see, Ms. Vergara marketed herself as a Latina. (As I wrote in an earlier post, I learned that associates mocked her claim, as her parents are European and her maiden name was Dutch, but any way that's how she marketed herself.)

       So I think what's going on here is the classic, "we'll use one of your people to fight you" strategy. I don't have any proof of this. I don't have a video of an O'Melveny lawyer saying, "the accusers are Latina so put our Latina on the case." It's pure speculation. But if you see a pattern, I think it's fair to wonder about motivations.

       And you'll see this pattern throughout biglaw. As a recent example, multiple black coaches sued the National Football League ("NFL") for discrimination.1 Who did the NFL hire to defend them? A black woman, Loretta Lynch of Paul Weiss. And she'll take it. As I described in prior posts (links one and two) -- biglaw has a cut-throat "eat what you kill" sales culture, and partners will take whatever rich client they can get.

       Or consider the case of the black associate who is currently suing Davis Polk for discrimination. Who did Davis Polk hire to defend them? A black attorney, Jeh Johnson of Paul Weiss. Incidentally, Paul Weiss is such a notoriously all-white firm that The New York Times wrote an article about it. But they have a few black lawyers, apparently to fight the black plaintiffs.

       Any way, I could give you countless other examples but I'll cut this short. Still, perhaps keep an eye on it. You might notice that minority biglaw attorneys fight members of their own group at a higher rate than you'd expect, if their race didn't play a role in assignments.

1 The coaches' biggest gripe was something I wrote about two years ago -- that the Rooney Rule a.k.a. the Mansfield Rule is a sham. That rule requires employers to consider a minority when hiring for a position, and it was marketed as a way to end discrimination. It's a sham because no one checks to see if minorities were actually considered. All an employer has to to do is to say they considered a minority, and they can go ahead and make the exact same decision they would have made if the rule never existed. A blatant racist who would never hire a black coach could easily satisfy the Rooney Rule.