Case 1:19-cv-00945-RDM Document 96 Filed 01/24/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NILAB RAHYAR TOLTON, et al.,
Plaintiffs,
v.
JONES DAY,
Defendant.

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Civ. No. 1:19-00945 (RDM)
REPLY IN SUPPORT OF
DEFENDANT’S MOTION FOR
RULE 11 SANCTIONS

Mary Ellen Powers (Bar No. 334045)
Beth Heifetz (Bar No. 417199)
Yaakov Roth (Bar No. 995090)
JONES DAY
51 Louisiana Avenue NW
Washington, DC 20001
Phone: (202) 879-3939
Terri L. Chase (pro hac vice granted)
JONES DAY
250 Vesey Street
New York, NY 10281
Phone: (212) 326-3939
Attorneys for Defendant

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TABLE OF CONTENTS
Page
INTRODUCTION......................................................................................................................................... 1
ARGUMENT ................................................................................................................................. 2 
I. 

PLAINTIFFS’ COUNSEL DELIBERATELY IGNORED FACTS THAT CONTRADICTED THE
PAY EQUITY CLAIMS AND FAILED TO PERFORM ANY REASONABLE INVESTIGATION......... 3 

II. 

EVEN ON THEIR OWN TERMS, PLAINTIFFS’ CIRCUMSTANTIAL BASES FOR
SUSPECTING PAY INEQUITY ARE UNREASONABLE. .......................................................... 11 

CONCLUSION ............................................................................................................................ 18 

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TABLE OF AUTHORITIES
Page(s)
CASES
Garr v. U.S. Healthcare, Inc.,
22 F.3d 1274 (3d Cir. 1994).......................................................................................................7
*Hedgeye Risk Management, LLC v. Heldman,
2019 WL 4750243 (D.D.C. Sept. 29, 2019) ......................................................................10, 11
Hedgeye Risk Mgmt., LLC v. Heldman,
1:16-cv-935, Dkt. 118 (Opposition to Rule 11 Motion, filed July 26, 2018) ..........................10
Hein v. Ore. Coll. of Educ.,
718 F.2d 910 (9th Cir. 1983) .....................................................................................................8
Heymann v. Tetra Plastics Corp.,
640 F.2d 115 (8th Cir. 1981) .....................................................................................................8
Hilton Hotels Corp. v. Banov,
899 F.2d 40 (D.C. Cir. 1990) .....................................................................................................9
Meadow Ltd. P’ship v. Heritage Sav. & Loan Assoc.,
118 F.R.D. 432 (E.D. Va. 1987) ................................................................................................9
Nassau-Suffolk Ice Cream, Inc. v. Integrated Res., Inc.,
118 F.R.D. 45 (S.D.N.Y. 1987) .................................................................................................9
Sowell v. Alumina Ceramics, Inc.,
251 F.3d 678 (8th Cir. 2001) .....................................................................................................8
OTHER AUTHORITIES
BTI Consulting Group, The All-New BTI Client Service A-Team 2020 Survey of
Law Firm Client Service Performance, at https://tinyurl.com/vot4wg6..................................18
Jones Day Celebrates International Women’s Day (Mar. 2019), at
https://tinyurl.com/vn939nc .....................................................................................................17
Jones Day Ranked #1 in BTI Client Service A-Team Report for Fourth
Consecutive Year (Dec. 2019), at https://tinyurl.com/yx68cwqp ............................................18

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INTRODUCTION
Seeking sanctions is not something that Jones Day takes lightly. But neither is being falsely
and baselessly accused of systemic pay discrimination. Even still, had the Firm’s only objection
been the speculative, attenuated, and often illogical inferences that Plaintiffs now claim they drew
to justify their allegation of nationwide gender-based pay inequity, the Firm would have contented
itself with moving for judgment on the pleadings as a matter of law and, if necessary, refuting the
allegation in discovery as a matter of fact.
Jones Day quickly learned, however, that this was not just a case of mistaken, good-faith
beliefs based on limited information. Plaintiffs knew far more than they let on in their pleadings—
and the facts they knew contradicted the inference that they claim to have indirectly drawn from
Plaintiffs’ perceptions (from their limited vantage point) about the Firm’s “culture,” its evaluation
process, and its long-held belief that publicizing individual lawyers’ compensation interferes with
client service. While Plaintiffs continue to maintain that those sorts of observations allowed them
to reasonably suspect that the Firm paid male associates more than female associates, they knew
that Mazingo earned more than the two men in her office and class. They knew that Stahl, too,
earned more than the male colleagues in California with whom she had discussed compensation.
They knew they could not identify any men in Irvine and Atlanta who were earning full “Cravath”
pay (including bonus). And they knew that the few male “comparators” they identified were bogus.
Despite knowing these facts, Plaintiffs did not revisit the viability of their “inference” that
the Firm discriminates against female associates in pay. Nor did they even investigate the matter,
such as by inquiring with former associates (even those former associates whom Plaintiffs named
in their Complaint, admittedly at random, as their comparators). Instead, Plaintiffs pressed ahead,
baldly alleged that the Firm was engaged in a nationwide practice of sex-based pay discrimination,
and simply omitted from their pleadings all of the inconvenient facts that showed otherwise.
1

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Rule 11 does not permit that ostrich tactic. It is one thing, as Plaintiffs say, to see a person
with a wet umbrella and allege, in good faith, that it was raining outside. Dkt. 88 at 23. It is
another thing to see the wet umbrella, look out the window at a dry sidewalk and sunny blue sky,
and then allege rain anyway, without so much as asking: “hey, how did your umbrella get wet?”
This Court should impose sanctions. Not because Plaintiffs’ allegations are insufficient to
state a claim (although they are). And not because Plaintiffs will be unable to prove their claims
in discovery (although they will be). Rather, sanctions are appropriate because Plaintiffs’ counsel
employed flawed and flimsy inferences to make very serious allegations in the face of known,
contradictory facts, without conducting the most basic investigation into whether their inferences
were warranted. Nothing in Plaintiffs’ opposition explains away those ethical lapses.
ARGUMENT
Plaintiffs argue that their claims are not sanctionable because they had various indirect,
circumstantial grounds for suspecting that Jones Day systemically discriminates against women in
compensation. Even if those grounds could theoretically provide a basis for a (strained) inference
to that effect, however, Plaintiffs ignore the critical point: They knew facts that showed the
inference was false. Asserting that inference despite (and without acknowledging) those facts, and
without first conducting an investigation into the truth of the allegations, violated Rule 11.
To be clear, each of Plaintiffs’ “six independent bases” is also badly flawed on its own
terms. They point to a handful of isolated, allegedly gendered interactions with associates,
partners, and clients who had no role in determining their pay. They say that disparate pay can be
inferred from disparate reviews—but have no basis to allege the latter, especially as most Plaintiffs
allege that they received positive reviews. They belatedly seek to draw an inference from partner
promotion rates—but they cite worldwide and stale promotion rates, while more than half of the
Jones Day lawyers promoted to partner in the U.S. over the last three years (the most relevant
2

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years) were women, well beating industry averages. Plaintiffs repeat their “Cravath” syllogism—
but ignore its obvious logical holes, as well as the contradictory facts Plaintiffs knew. Plaintiffs
also purport to identify comparators, but when they were presented with the pay data for their own,
hand-picked comparators—data that contradicts their allegations—Plaintiffs nonetheless doubleddown, accusing Jones Day of “cherry-picking.” Yet their own Exhibit I puts the lie to any claim
of systemic discrimination, as Mazingo and Stahl—the only two Plaintiffs who were performing
satisfactorily—were among the highest paid lawyers on the list outside of New York. Finally,
Plaintiffs point to the Firm’s longstanding belief that publicizing individual lawyer compensation
will interfere with client service—a value that some Plaintiffs admit drew them to Jones Day, and
that in no way is suggestive of sex discrimination in pay. None of this remotely justifies a belief
that the Firm systemically pays women less than men. But it certainly cannot justify such a goodfaith belief in view of the actual facts about pay that Plaintiffs knew from the outset.
I.

PLAINTIFFS’ COUNSEL DELIBERATELY IGNORED FACTS THAT CONTRADICTED THE PAY
EQUITY CLAIMS AND FAILED TO PERFORM ANY REASONABLE INVESTIGATION.
A.

Assume arguendo that Plaintiffs could reasonably have suspected—based on their

observations of the Firm’s culture, evaluation process, and confidentiality policy—that female
associates were systematically paid less than men. But see Part II, infra. Before alleging that
suspicion as truth, any reasonable plaintiff or counsel would, at minimum, consider whether the
suspicion was consistent with the known facts about associate pay. Rule 11 requires no less.
Plaintiffs complain about their lack of access to comprehensive pay data. Dkt. 88 at 3637. But they (and thus their counsel) did have access, as it turns out, to a number of data points
about associate pay—all of which refuted their supposed “inferences” and “suspicions”:


Mazingo was the “big winner” and the “outlier of [her] class” in her final year at
the Firm, earning more than the male colleagues who started with her in Irvine. See
Dkt. 93-16 at 9, 12-13.

3

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

The prior year, Mazingo and her two male counterparts in Irvine had all earned the
same salary. See id. at 2.



Stahl, too, knew that she earned $25,000 above the Cravath base in her last year at
the Firm while her male colleagues in California did not. See id. at 9.



The prior year, Stahl reported that she and her “peeps” in another California office
were all being paid the same amount. See id. at 2.



Stahl commented privately to another associate about “how underpaid” one of her
male colleagues was. See id. at 6.



Williams knew of a female associate in Irvine who received an above-market pay
adjustment, but did not know of any men in that position. Dkt. 93-4 at 8-10, 24,
37-38 (Williams Tr. 133:7-20, 134:2-7, 134:23-135:6, 287:10-13, 344:23-345:10).



Draper knew that another female litigation associate in her class year in Atlanta was
earning up to $40,000 more than Draper, undermining any notion that Draper’s low
pay was the result of her sex. See Dkt. 93-8 at 15 (Draper Tr. 131:8-16).



According to Draper, she secretly recorded Yvette McGee Brown, the Partner-inCharge of Diversity, Inclusion & Advancement, advising that she had “not seen
any gender disparity with regard to how associates are paid.” Dkt. 88-11 at 3;
Second Chase Decl. Ex. 11 at 5-6 (Draper Tr. 423:20-424:18).

In light of those known facts—which Plaintiffs continue to ignore in their opposition—
Plaintiffs’ counsel violated Rule 11 by nevertheless alleging systemic sex-based discrimination in
pay. Whatever attenuated grounds Plaintiffs might have had to suspect such a thing, one cannot
cling to a hypothesis after the facts prove it wrong. Doing so is sanctionable.
B.

Plaintiffs claim that some other known data points confirmed their suspicions. But

these arguments are likewise facially refuted by facts that Plaintiffs knew but declined to mention.
First is the fact that Plaintiffs did not earn Cravath salary-plus-full-bonus, which they
define as “market” compensation nationwide. Plaintiffs say this “gap between what Plaintiffs were
told associates were paid and what they observed high performing female associates being paid”
generated an inference that Jones Day “pays male associates more than their female counterparts
based on gender.” Dkt. 88 at 25. This inference is nonsensical and Plaintiffs knew it:

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

Plaintiffs knew from Firm guidance that associate compensation is not “uniform
across all geographic markets” but instead is based on (among other things) “local
market conditions.” Dkt. 93-9 at 3 (Firm Manual).



Plaintiffs knew that even first-year starting salaries did not equal Cravath’s starting
salary in all Jones Day offices. Dkt. 41 at 14 (TAC ¶ 45). Draper accepted a job
in Atlanta at a salary that was well below even the Cravath base. See id.



Plaintiffs knew that multiple male associates in California were earning only
Cravath base (not bonus), for the two years relevant to Plaintiffs’ claims, even as
Mazingo and Stahl earned well above Cravath base in the latter of those years. See
Dkt. 93-16 at 9-13.



Despite learning through private discussion what many of their male colleagues
were earning, Plaintiffs collectively did not know a single male associate outside
New York who was paid at the Cravath base-plus-full-bonus level to which
Plaintiffs claim they were entitled. See Dkt. 93 at 10 & n.5.

These facts cannot support an inference that Jones Day discriminates against women in pay
at all, let alone does so systematically nationwide. The only plausible inferences to draw are that
(1) Plaintiffs were not “top performers,” and/or (2) Cravath salary-plus-full-bonus was not what
Jones Day considered the “market” compensation in Irvine or Atlanta during the relevant period.1
Beyond the “Cravath” theory, the three Plaintiffs who were asked to leave the Firm for
performance reasons (not “top performers” by any stretch) claim they knew of pay disparities with
certain male associates. Dkt. 88 at 28-29. Even if those comparisons worked, three cases of men
earning more than women could not justify an inference of nationwide pay discrimination when
these Plaintiffs also knew of many more cases of women (including themselves) earning more than
men. More importantly, the comparisons are again foreclosed by facts Plaintiffs knew but ignored.

1

As to performance, three of the Plaintiffs (Henderson, Draper, and Tolton) were asked to
leave the Firm for performance-related reasons and a fourth (Williams) was struggling. Plaintiffs’
counsel received the Irvine Plaintiffs’ reviews long before they filed suit and knew that even
Mazingo and Stahl, who generally received good reviews, were not “top performers.”
Nonetheless, Mazingo, Stahl, and even Williams were paid above the average salary paid to the
male comparators in Irvine that Plaintiffs have identified. See Second Chase Decl. Ex. 8 at 5.
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Tolton and Henderson admitted that pay hinged on, among other things, their productivity.
Dkt. 93-5 at 4-5 (Tolton Tr. 239:6-240:2); Dkt. 93-11 at 4 (Henderson Tr. 154:15-20). Yet they
knew their hours were abysmally low: 897 and 1131 for Tolton’s final two years at the Firm (even
after being annualized to account for her leaves), and 1180 and 202 for Henderson’s two full
calendar years. See Dkt. 93-12 and 93-13. Plaintiffs retort that Title VII does not require “equal
work.” Dkt. 88 at 30. But Title VII only prohibits discrimination based on sex, not based on
productivity. Law firms still generate revenue predominantly on the basis of hours billed. Pay
disparities between associates with vastly different productivity levels therefore cannot possibly
give rise to a good-faith inference of sex discrimination.2
As for Draper, she testified that she knew of one male associate in Atlanta who earned
$40,000 more as a fourth-year associate than she had earned as a fourth-year associate. See Dkt.
93-8 at 27 (Draper Tr. 149:9-18). But Draper knew that this male associate was four years junior
to her—meaning that he was a fourth-year associate four years after her—and that the Firm had
“raised starting salaries” in Atlanta by $40,000 during the intervening period. Id. at 14, 27 (130:1319, 149:19-24).3 Moreover, Draper also knew of a female associate in Atlanta—in her own class
year—who likewise earned up to $40,000 more than Draper. Id. at 15 (131:8-16). If men and
women alike earned more than Draper, what is the good-faith basis to allege sex discrimination?

2

Notably, while Henderson identifies men in her class in New York who received a raise
when she did not, she ignores that all of the other women in her class in New York also received
raises. Dkt. 57 at 84-85 (Answer ¶ 288). The only plausible inference is that Henderson’s deficient
performance, not her gender, accounted for the differential in compensation.
3

The other “comparators” whom Draper now identifies, after discovery (Dkt. 88 at 29
n.18), likewise were all junior to her, and benefited from significant market adjustments that
occurred in mid-2016 (after Draper’s productivity had significantly declined) and mid-2018 (when
Draper had already been told to find alternative employment). See Dkt. 88-10.

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Beyond these three examples, Plaintiffs were unable to identify any similarly situated men
at Jones Day who earned more than them.4 Even Williams, who alleged eight comparators,
admitted she had no idea what their salaries were and had not bothered to ask. Dkt. 93-4 at 11-21
(Williams Tr. 138:9-143:10, 146:15-150:15). Instead, Plaintiffs argue that discovery to date has
confirmed their suspicions. Discovery material, of course, is irrelevant to whether Plaintiffs had a
good-faith basis for filing their lawsuit. See Garr v. U.S. Healthcare, Inc., 22 F.3d 1274, 1279 (3d
Cir. 1994) (“A shot in the dark is a sanctionable event, even if it somehow hits the mark.”).
Regardless, they so badly mischaracterize the evidence that it only reinforces the conclusion that
they are acting in bad faith. See Dkt. 88 at 29 nn. 18-20 & Dkt. 88-10.
In fact, Plaintiffs’ Exhibit I, reflecting pay information produced in discovery on Plaintiffs’
supposed “comparators,” refutes their allegation of systemic sex-based pay inequity. Plaintiffs
conveniently omit the offices of the comparators in their exhibit (though Jones Day produced that
information) to obscure that the two highly-paid males that Mazingo, Stahl, and Williams pick for
comparison (Dkt. 88 at 29-30 n.20) were both in New York. In any event, Plaintiffs’ comparisons

4

Plaintiffs point to an eighth-year male associate, James Burnham (whom they erroneously
identify as a seventh-year), who publicly disclosed his employment income when he left the Firm,
one year before he would have been considered for partnership, to become Associate White House
Counsel (and later a Deputy Assistant Attorney General in the Department of Justice, handling
some of the Administration’s most important cases). Dkt. 88 at 26. Stahl claims to have worked
with him on one appellate brief but she solicited an evaluation from him as her supervisor on the
matter; she cannot credibly claim he is a comparator. Indeed, he was four years more senior,
located in D.C., practiced in the Issues & Appeals group, and had rave reviews. And anyway, as
the public filing shows and as Plaintiffs recognize, his disclosed income included a substantial
departure bonus paid in recognition of many years of outstanding service to the Firm, including
his critical role in the high-profile defense of former Virginia Gov. McDonnell from trial through
successful appeal to the Supreme Court. None of the five other associates who left for the new
Administration in 2017 (four men and one woman, all of whom had short tenures with the Firm)
were paid such a bonus. Lovitt Decl. ¶¶ 2-5. These unique circumstances obviously do nothing
to ground Plaintiffs’ claims of sex-based disparate pay, which is presumably why Plaintiffs did not
even allege these facts in their Complaint.
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prove nothing, as the relevant question in the context of multiple (alleged) comparators is whether
a female earned “lower wages than the average of wages paid to all [male] employees ...
performing substantially equal work and similarly situated with respect to any other factors ... that
affect the wage scale.” Hein v. Ore. Coll. of Educ., 718 F.2d 910, 916 (9th Cir. 1983); see also
Heymann v. Tetra Plastics Corp., 640 F.2d 115, 122 (8th Cir. 1981) (rejecting “self-serving”
comparison to “highest paid employee”); Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 684
(8th Cir. 2001) (rejecting claim where plaintiff “was paid the same as, or more than, at least some
male tool makers”). Here, Plaintiffs’ own evidence reflects the following about their salaries
relative to male salaries at comparable career levels:


In her second year (averaging both the first and last halves of the year), Mazingo
earned more than 15 of 18 men in their second years. Two of the three higher-paid
men were in New York. Second Chase Decl. Ex. 8.5



In her third and last year, Mazingo made more than 11 of 14 men in their third
years. Two of the three higher paid men were in New York. Id.



In her fourth year, Stahl made the same or more than 10 of 11 men in their fourth
years. The only higher-paid male was in New York. Id.



In years two through four, all of the Irvine Plaintiffs made the same or more than
the average pay for the identified male Irvine associates. Id.

5

Jones Day’s Exhibit 18 provided pay data for the “comparators” identified by Williams
in the TAC, whom Plaintiffs later argued were also comparators for Mazingo and Stahl. Plaintiffs’
Exhibit I provides pay data, produced by Jones Day, on those same comparators plus several New
York associates from Henderson’s class and four Atlanta associates whom Draper named in her
deposition (all of whom were junior to her). In Exhibit 8 to this reply, Jones Day has annotated
Plaintiffs’ Exhibit I with each comparator’s office and with average pay for (i) all the comparators
and (ii) the Irvine comparators, at each level of seniority. The Exhibit shows the wide variation in
compensation by time and place, including when in an associate’s career a major market move
happened in a particular geography. The Exhibit also demonstrates the significant differences in
pay between New York and other markets. For example, a fourth-year New York male associate
earned $120,000 more than a high-performing fourth-year Atlanta male associate (compare the 8th
and 15th male associates on the chart) and $90,000 more than even a high-performing fifth-year
Irvine male associate (the 9th male associate on the chart). See Second Chase Decl. Exs. 2-3.
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

By year five, only Tolton, Draper and four “comparators” remained at Jones Day.
Both Tolton and Draper were struggling at that point. The men with substantially
stronger hours and reviews made more; the man with similar hours and reviews
made less. See id.; Second Chase Decl. Exs. 2-5 (comparator assessments).

Thus, the post hoc discovery shows exactly what one would expect at a non-lockstep law
firm: sex-neutral variation, as some women do far better than the average male (Mazingo, Stahl)
and others fall below average (Draper, Tolton), depending on their individual performance.
C.

Given the contradictory facts Plaintiffs knew, they were obligated to investigate

before filing a complaint premised on suspicion and attenuated inferences. See Nassau-Suffolk Ice
Cream, Inc. v. Integrated Res., Inc., 118 F.R.D. 45, 48 (S.D.N.Y. 1987). Instead, they ignored the
facts and asserted mere suspicion as fact. That deliberate indifference and failure to investigate
deserve sanction. See Hilton Hotels Corp. v. Banov, 899 F.2d 40, 42-43 (D.C. Cir. 1990).
Plaintiffs admit that they did no investigation despite the wealth of evidence discrediting
their claims. Dkt. 88 at 40-43. They argue that three reasons absolve their failure. None do.
First, Plaintiffs assert that because “their pay claims have factual support,” no investigation
is needed. Dkt. 88 at 40. As shown, that is demonstrably false. And when parties or counsel
know facts that contradict their theories, investigation is especially critical. See Meadow Ltd.
P’ship v. Heritage Sav. & Loan Assoc., 118 F.R.D. 432, 434 (E.D. Va. 1987).
Second, Plaintiffs argue that Jones Day has not shown that “the steps [counsel] took to
investigate … were unreasonable.” Dkt. 88 at 42. But counsel do not identify any steps they took
to investigate. Nor did Plaintiffs themselves investigate. Draper testified she did not “have any
insight into what male counterparts were making at the firm” and “did not specifically ask them.”
Dkt. 93-8 at 22 (Draper Tr. 140:12-23); see also id. at 20-21 (138:24-139:7). Williams admitted
she “did not conduct research into” the salaries of the “comparators” she named in the Complaint
because that would have been too “awkward.” Dkt. 93-4 at 13-14 (Williams Tr. 140:7-141:2).

9

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Third, Plaintiffs argue that no inquiry “would have conclusively disproven Plaintiffs’ belief
that” Jones Day pays women less, because only Jones Day has the necessary “statistical pay data.”
Dkt. 88 at 42-43. But Rule 11 does not authorize filing claims so long as they are not “conclusively
disproven.” Rather, it requires a good-faith basis to believe the allegation’s truth.
Plaintiffs’ failure to investigate distinguishes this case from Hedgeye Risk Management,
LLC v. Heldman, 2019 WL 4750243 (D.D.C. Sept. 29, 2019). There, this Court found it a “close
question” whether the plaintiff had a reasonable belief that the defendant had solicited its clients
before his resignation. Id. at *13. The company relied on the defendant’s “alleged uptick in
searches for client contact data, pre-departure in-person client meetings, and the fact that a client
stopped paying for [the company’s] services after [the defendant] left.” Id. Importantly, the
company tried to investigate its theory, by “reach[ing] out to former clients,” but the former clients
“indicated that they would not provide information without a subpoena.” Hedgeye Risk Mgmt.,
LLC v. Heldman, 1:16-cv-935, Dkt. 118, at 13 (Opposition to Rule 11 Motion, filed July 26, 2018).
That put the plaintiff in the “precarious position of having to subpoena clients that it either was
still doing business with or hoped to regain their business.” Id.
Here, unlike in Hedgeye, counsel was aware of facts that directly contradicted Plaintiffs’
tenuous, inferential theory of discrimination. Nonetheless, unlike in Hedgeye, Plaintiffs’ counsel
did not even try to talk to other former associates to investigate Plaintiffs’ suspicion of a firm-wide
gender pay gap. It would be one thing if counsel had emailed former associates and got the cold
shoulder. But counsel did not take even that basic step. The best explanation Plaintiffs muster is
that they believed “outreach would have been unavailing given the emphasis Jones Day places on
pay secrecy.” Dkt. 88 at 42. This rings hollow, because Plaintiffs themselves talked extensively
about pay while they were at Jones Day (and after they left). Dkt. 93 at 20. And former

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associates—which all but one of Plaintiffs’ collective “comparators” now are—could not possibly
be bound by any sort of “pay secrecy” policy. Outreach was the least counsel could do. By failing
to take even that rudimentary step, Plaintiffs’ counsel here did not “toe[] the line separating
reasonable pleadings from frivolous ones,” Hedgeye, 2019 WL 4750243, at *13—but crossed it.
II.

EVEN ON THEIR OWN TERMS, PLAINTIFFS’ CIRCUMSTANTIAL BASES FOR SUSPECTING
PAY INEQUITY ARE UNREASONABLE.
Aside from the pay-related facts above, Plaintiffs point to four circumstantial, inferential

bases for suspecting that Jones Day pays women less than men. These inferences could not satisfy
Rule 11 in view of the contradictory facts about pay that Plaintiffs knew, and their failure to
investigate the matter. But these four grounds also fail on their own terms.
A.

Plaintiffs first claim they “observed a pattern of gendered comments and hostility

toward women.” Dkt. 88 at 16. But the isolated incidents that Plaintiffs identify mostly involved
non-partners6 and partners who played no role in setting pay.7 Cf. Dkt. 94-11 (Firm Manual) at 5;
see also Dkt. 57 at 9 (Answer ¶ 9). At a global firm with 2,500 lawyers, it is not reasonable to
infer systemic discrimination in pay based on (unreported) comments or conduct of a few scattered
individuals who are not involved in the compensation process, particularly when Plaintiffs go to
great lengths to (over)-emphasize the centralization of pay decisions.

6

Dkt. 88-3 at 10-14, 16-17 (Mazingo Tr. 84:17–88:24, 104:15-105:10) (testifying about
actions by an associate and an Of Counsel, misidentified as a partner, Dkt. 88 at 17 n.1); Dkt. 887 at 14 (Stahl Tr. 291:14–291:24) (complaining about a conversation with a female Of Counsel,
erroneously identified as a Partner, Dkt. 88 at 17); Dkt. 88-2 at 17-18 (Tolton Tr. 243:19–244:5)
(recounting Firm’s investigation and disciplinary action against an associate for objectionable
conduct—the only incident alleged in the Complaint that was reported to Firm management).
7

Dkt. 88-4 at 18-20 (Williams Tr. 193:15-23, 213:17–214:25) (partner who never reviewed
Williams); Dkt. 88-7 at 25 (Stahl Tr. 432:16–24) (partner who never reviewed Stahl); Dkt. 88-2 at
12-13 (Tolton Tr. 192:11-193:10) (partners who never reviewed Tolton or did so as associates).
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B.

Plaintiffs’ second ground is that discrimination in the review process can be

expected to impact pay, given Jones Day’s merit-based compensation system. The problem is that
Plaintiffs point to nothing to support any good-faith belief that Jones Day associate evaluations
were discriminatory. Mazingo says every attorney “gave her excellent reviews”; she had “no
negative reviews.” Dkt. 41 at 38-39 (TAC ¶ 132). Tolton calls her reviews “overwhelmingly
positive.” Id. at 33 (¶ 111). Stahl says the feedback on her work was “positive.” Id. at 69 (¶ 251).
Draper alleges that her “first negative annual review” came six years into her tenure. Id. at 53, 63
(¶¶ 184, 222). Williams, too, cites “years of strong reviews.” Id. at 50 (¶ 173). Even Henderson
says she got a “positive” review. Id. at 81 (¶ 297). Plaintiffs cannot claim they had stellar reviews,
yet at the same time pin suspicions of pay inequity on “inferences” that their reviews were biased.
Plaintiffs cite Mazingo’s opinion that “Jones Day takes no steps to ensure evaluations are
free from bias.” Dkt. 88 at 19. Even if that incompetent conclusion were true (it is not), the lack
of steps to prevent bias is not equivalent to the existence of biased reviews. And, as noted, Mazingo
herself claimed she received no negative reviews, even from the partner whom she accuses of
sexualized comments (Dkt. 41 at 41-42 (TAC ¶¶ 139-41)). Similarly, Plaintiffs quote Henderson’s
vacuous testimony that “because the evaluations were based on discriminatory policies” (what
policies, she would not say), “she believed that some of her evaluations were discriminatory”
(which evaluations, she would not say). Dkt. 88 at 19. That cannot possibly support a good-faith
belief that the reviews were discriminatory, much less that they caused a nationwide pay disparity.
Three Plaintiffs claim their “consensus statements”—the assessment statements prepared
based on the inputs to the evaluation process—were manipulated in a discriminatory fashion. But
they knew that was not true. These Plaintiffs had their reviews and assessment statements long
before they filed suit. This Court can now see for itself that these Plaintiffs’ claims are false.

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Start with Stahl, the only Plaintiff who claims to have found a “gendered critique” in her
assessment statement. Dkt. 88 at 18-19. She claims her final assessment for her performance as
a third-year associate focused on her lack of “enthusiasm” and “criticized [her] for her appearance”
despite her “excellent reviews.” Dkt. 88-7 at 11-12 (Stahl Tr. 232:25-233:12). Lack of enthusiasm
has nothing to do with gender, and she has no basis to allege that disinterested, disengaged men
were not similarly criticized. But Stahl’s facts are wrong too. Her final assessment did not “focus”
on her lack of enthusiasm or even mention her appearance, and it highlighted the strong (although
not uniformly excellent) work reflected in her reviews. Stahl’s final assessment begins: “Jaclyn
received highly complimentary reviews from numerous partners and reviewers in multiple offices
and practice groups.” Dkt. 94-13 at 2. It proceeds with a series of complimentary sentences. Then
it says: “Her commitment, willingness or enthusiasm to handle last minute projects or what she
perceives as less important projects has been inconsistent, and should be an area of improvement
this year.” Id. But that legitimate critique is drawn from the underlying reviews. One reviewer
said Stahl “gives the impression” that “document review” “should be assigned elsewhere.” Id. at
3. Another said she “attempted to pawn the weekend work off onto [new lawyers] who had just
started work five days prior.” Id. Another: “She has also created the perception that she is less
than enthusiastic about certain projects and that affects her willingness to take them on.” Id.
Indeed, Stahl herself told a colleague she wanted to “do appeals full time” but was “over BATL”—
i.e., “Business and Tort Litigation,” her practice group. Dkt. 93-16 at 4. And she affirmatively
alleges that, in her view, she was too good for document review (which her male BATL peers were
also required to do). Dkt. 41 at 70 (TAC ¶ 255). Her assessment thus accurately reflected both
her reviews and the reality that Stahl was not interested in doing important aspects of her job.
There is nothing gendered about that.

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Likewise for Williams. She claims her underlying reviews were “generally positive” but
her final assessment was “unfairly negative, focusing on a single partner’s negative comments
while omitting positive commentary.” Dkt. 88 at 19; see also Dkt. 41 at 51 (TAC ¶ 176). But
counsel knew that characterization was untrue. Williams, in fact, received serious criticism from
multiple partners (male and female). The supposedly unfair evaluation came from a female partner
and stated the following, in full:
Time management, judgment and concise persuasive writing are issues for Meredith.
Meredith was assigned two important briefs in the [CLIENT] matter, an opposition to
a motion to compel/motion for sanctions and a motion to compel. Both were abysmal
rambling streams of consciousness that were poorly written. Neither included the
arguments I asked her to make. More troubling was the fact that she gave me one draft
the day before it was due and then dropped the revisions and the research needed to
complete the brief to go on vacation. When I called her the afternoon the brief was due
to inquire as to when I would see the next draft and she told me she sent a vacation
memo so she was not going to be able to complete the papers. Meredith’s enthusiasm
and support on practice development initiatives is welcome and refreshing, but are not
a substitute for doing good legal work in a timely fashion.
Goals: Meredith’s writing is a rambling mess. She needs to learn to organize an
argument and then execute it persuasively. She also needs to decide if she wants to
commit to being a lawyer, dropping an assignment to go on vacation is not acceptable.
Dkt. 94-14 at 6. Another partner echoed much the same, saying he “attempted to contact Meredith
for assistance only to learn that she was on vacation out of the country without having given me
any notice.”

Id. at 7.

Another partner, while praising her work on one project, stated:

“Unfortunately, I need to remind her of deadlines, and follow-up on assignments, to make sure
everything is moving along.” Id. at 4. Yet another (female) partner: “I never know what to expect
from Meredith’s work. At times, she will produce work product that is very well-written, strongly
argued, and considers creative angles that I would not expect from her level. At other times, she
has given me work product that is mediocre at best and needs extensive changes.” Id. Williams’
overall assessment was understandably critical in light of these reviews. But it also noted that

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“[s]he has a lot of potential, because she has strong analytical skills, is intelligent, and shows
enthusiasm for practice development initiatives and office pro bono work for which she receives
praise.” Id. at 2. On this record, counsel had no good-faith basis for alleging that Williams had
only received one negative review or that her assessment was the result of gendered manipulation.
Finally, Tolton claims that she was “shock[ed]” at how her “consensus statement” did not
accurately represent her underlying reviews. Dkt. 88-2 at 11 (Tolton Tr. 139:6-24). Yet even a
cursory comparison shows that this is baseless. In her early years, Tolton was described as: “Hard
worker, very bright, and good team player.” Second Chase Decl. Ex. 7 at 4. But as she became
more senior, she began receiving “[m]ixed reviews.” Id. For 2014, her assessment said: “While
recognized as smart and committed to the Firm, there is a concern about the analytical rigor that
she brings to some of her cases.” Id. And her individual reviews went downhill from there, as did
her productivity. Her limited work in 2016 was criticized (by a female partner) as “unacceptable”
and untimely. Id. at 7. Another partner agreed Tolton’s “performance and level of effort ... was
unsatisfactory.” Id. at 8. The partner noted a “continuing lack of internal demand for her services.”
Id. Tolton also “did not proactively seek out additional … cases or seek other work.” Id. And in
the one instance where she did take that initiative, the reviewer noted: “I never felt like she really
dug into this case.” Id. at 9. Her final assessment for 2016 reflected those criticisms accurately.
Id. at 2. And she did so little work in 2017 that there was no meaningful work to review.
C.

Plaintiffs’ next purported basis for believing that Jones Day pays women less is

promotion rates. Plaintiffs admit that they had this data from publicly available source prior to
filing this suit (Dkt. 88 at 20 fn. 4) yet they do not mention it in their Complaint because, contrary
to their new claims, the numbers refute any inference of unequal pay. Plaintiffs make two critical
errors attempting to argue otherwise. First, they look at worldwide promotions, including in

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Europe, Asia, and Latin America, which have nothing to do with this case and where there is no
data about the gender composition of the associate pool.8 Second, they ignore how favorably Jones
Day’s statistics on this score compare with industry statistics from major U.S. law firms—statistics
that are published on the same website that Plaintiffs cite (Vault.com, Dkt. 88 at 22).
The facts are these: Over the last three years—the years that most closely track Plaintiffs’
associate classes—more than half the U.S. partners promoted at Jones Day were women. Second
Chase Decl. Ex. 9. Over the last five years, 44.4% were women. Id. And even over the last ten
years, 41.7% were women. Id. Meanwhile, the industry average of female promotions at large
law firms during the period 2011-2018 (the latest year for which the data was publicly available
on Vault) was only 35%. Id.9 Publicly available promotion data thus shows that law firms without
a Managing Partner system, without “pay secrecy,” and without individualized compensation have
worse female promotion rates than Jones Day. This data thus offers no good-faith basis to infer
that Jones Day’s practices result in pay discrimination.
Moreover, as Plaintiffs concede, partnership promotion is a lagging indicator, affected by
the pool of associates who started at the Firm ten years before the partnership decision was made.
Publicly available data from Vault.com show that female associates have historically accounted
for about 45% of associates at firms nationwide, and that the female proportion of Jones Day’s

8

The first chart in Plaintiffs’ brief (Dkt. 88 at 20) contains data on worldwide promotions
taken from Jones Day’s public announcements, which are compiled at Plaintiffs’ Ex. H. Those
announcements identify the geographic location of the new partner, information Plaintiffs ignore.
Plaintiffs’ second chart (Dkt. 88 at 22) contains data from Vault.com which, although limited to
U.S. data, contains an error for 2012. As shown by the 2012 announcement in Plaintiffs’ Ex. H,
10 women and 12 men were promoted to partner in the U.S. that year, a 45% female promotion
rate.
9

This is the period that encompasses all of the Plaintiffs’ employment at Jones Day. The
promotions effective January 2011 were announced shortly after Tolton, the most senior Plaintiff,
joined Jones Day. All of the Plaintiffs left Jones Day before the end of 2018.
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associate ranks have long hovered around the same figure. Lovitt Decl. Ex. 1. That aligns with
Jones Day’s proportion of female partner promotions over the last five years, and is below the rate
of the Firm’s female partner promotions over the past three years—suggesting, if anything, that in
the most relevant recent years, women are being promoted at higher rates than men.
D.

Last, Plaintiffs point to “Jones Day’s pay-secrecy practices,” invoking the theory

that Jones Day must be “hid[ing]” something by treating its lawyers’ compensation as confidential.
Dkt. 88 at 31. But, as they admit, confidentiality could only give rise to a suspicion of misconduct
if there is “no genuine basis for keeping that information confidential.” Dkt. 88 at 34 (quoting
Chambers v. Capital Cities / ABC, 159 F.R.D. 441, 445 (S.D.N.Y. 1995)). And there is no question
the Firm has genuine, well-founded reasons for not publishing individual lawyer compensation—
a practice that existed even before Jones Day hired its first female attorney in the early 1960s.10
Specifically, when compensation is individualized and merit-based, confidentiality helps
to promote collegiality by avoiding jealousy, bitterness, and anger (on the part of the lower-paid)
and arrogance, superiority, and ego (on the part of the higher-paid). It also prevents embarrassment
both for those who make less than their peers and those who make more—as Mazingo learned
first-hand when her salary was higher than her male counterparts. See Dkt. 93-16 at 9, 13
(reporting that “Andi” was “embarrassed” by her higher pay). For these reasons, Jones Day has
long believed that publication and broad disclosure of individual attorneys’ compensation would
detract from the Firm’s singular goal of providing seamless, collaborative client service. Indeed,

10

Video, Jones Day Celebrates International Women’s Day (Mar. 2019), at
https://tinyurl.com/vn939nc. Of course, Jones Day has taken steps to ensure compliance with
evolving legislation, such as the California and New York statutes enacted in 2015 and 2016,
neither of which requires the publication of individual compensation figures.

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by keeping the focus on client work instead of pay, Jones Day has been able to deliver unparalleled
client service that is the envy of the legal industry.11
And Plaintiffs knew all this from the outset. They understood, before joining the Firm, that
Jones Day treated salary information as confidential.12 None of them saw it as a drawback and, in
fact, some agreed that it was a positive feature, including after seeing it in operation. Williams,
for example, turned down a competing offer after two years at the Firm “based on some of the
advantages, long-term cultural advantages, at Jones Day of pay secrecy, confidentiality, [and] the
collegial working environment.” Second Chase Decl. Ex. 6 at 6-8 (Williams Tr. 93:15-95:2); see
also Second Chase Decl. Ex. 10 at 3-4 (Stahl Tr. 16:21-17:24). Having recognized the good
reasons for confidentiality, Plaintiffs cannot now in good faith assert that it is illegitimate and
evidence of discrimination.
*

*

*

Plaintiffs had no good-faith reason to believe that Jones Day was paying women less than
men. But even if their strained inferences could be credited, that could not justify counsel’s failure
to do any investigation upon learning facts about associate pay that directly undermined their core
allegation. As a consequence for that failure, the Court should order sanctions.
CONCLUSION
For these reasons, the Court should grant Jones Day’s motion for Rule 11 sanctions.

11

BTI Consulting Group, The All-New BTI Client Service A-Team 2020 Survey of Law
Firm Client Service Performance (based on client surveys, ranking Jones Day as the top law firm
in terms of client service for the fourth consecutive year), at https://tinyurl.com/vot4wg6. Jones
Day has been ranked first in twelve of the nineteen years BTI has published its client service
rankings and second in six of the remaining years. Jones Day Ranked #1 in BTI Client Service ATeam Report for Fourth Consecutive Year (Dec. 2019), at https://tinyurl.com/yx68cwqp.
12

E.g., Second Chase Decl. Ex. 11 at 3-4 (Draper Tr. 46:5-47:8); Second Chase Decl. Ex.
6 at 3-5 (Williams Tr. 59:23-61:7); Second Chase Decl. Ex. 10 at 3-4 (Stahl Tr. 16:21-17:24).
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January 24, 2020

Respectfully submitted,
/s/ Mary Ellen Powers
Mary Ellen Powers (Bar No. 334045)
Beth Heifetz (Bar No. 417199)
Yaakov Roth (Bar No. 995090)
JONES DAY
51 Louisiana Avenue NW
Washington, DC 20001
Phone: (202) 879-3939
Terri L. Chase (pro hac vice granted)
JONES DAY
250 Vesey Street
New York, NY 10281
Phone: (212) 326-3939
Attorneys for Defendant

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