October 29, 2009 10:15 AM

Ropes, Eckert Lawyers Remember Strange Halloween Costume Case

Posted by Zach Lowe

When a few folks alerted us to a case involving a woman whose sexual harassment lawsuit against her company failed last week in part because her provocative Halloween costumes, it struck us at first as interesting but perhaps not fodder for our Am Law 200-focused blog. 

Boy, were we wrong. We took a look at the docket and saw that the defendant company had retained Joan Lukey, the partner who created a stir when she became the first lateral in recent memory to move from Wilmer Cutler Pickering Hale and Dorr to fellow Boston-based rival Ropes & Gray. We called Lukey, and her stories about the case had us laughing, mouth agape, for several minutes.

The not-funny-at-all background: Kimberly Dahms, a midlevel executive, sued her employer, the Natick, Ma.-based tech company Cognex Corporation, and two of its top executives for alleged sexual harassment and creating a hostile working environment. The company investigated Dahms' initial complaints (which focused on one male executive) and came to believe she was in the wrong. The company moved to have Dahms sign a noncompete agreement in the event that she left the company. Dahms then filed a civil suit in Massachusetts trial court, claiming the company was retaliating against her. 

Her complaint also cited the company's raucous Halloween parties, claiming people dressed and behaved inappropriately. 

Cognex and its CEO, Robert Shillman, retained Lukey, and she sat in on what she remembers as a six-day deposition of Shillman. That's when the case took a bizarre turn. Shillman--known for his sense of humor and his devotion to Halloween, Lukey says--wore a different Halloween costume to each day of his deposition. The get-ups included a priest costume (complete with garlic necklace to repel vampires) and, most memorably for Lukey, a full Mr. Peanut costume, top hat and all. One problem: The hat made the costume top-heavy, and Shillman at one point toppled out of his chair when he tried to lean back, Lukey says.

He also used some classic (or tired?) lawyer jokes at the expense of opposing counsel, Michael Flammia of Eckert Seamans Cherin & Mellott, referring to Flammia as "Mr. Bottom-Dweller" and "Mr. Mud-Sucker," Lukey says. Flammia, for his part, doesn't remember the specific comments, only that he "may have found [Shillman] aggravating" and that Shillman indeed dressed as Mr. Peanut. Lukey says Flammia at one point filed a motion asking the trial judge to rein in Shillman's attire and commentary; Flammia says he can't say for sure whether or not he filed such a motion. (In any case, Lukey says the judge ruled Shillman could dress as he pleased but requested him to refrain from making inappropriate comments to counsel.) 

At trial, Lukey says Shillman inexplicably dressed like a college professor, complete with a prop pipe.

Shillman did not return a message seeking comment. And rarely have we been so disappointed that someone didn't return a request for comment. 

Oh: We almost forgot to mention the reason we are writing this post in the first place. Dahms lost at trial, at least in part because the jurors got to see several photos showing her dressed provocatively at company Halloween parties, court records show. Lukey argued the photos proved Dahms embraced the company's "work hard, play hard" culture and was not a victim of that culture.

Dahms appealed the verdict on several grounds, including that the trial judge was wrong to admit the photos as evidence. A state appeals court affirmed the verdict last week. 

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