March 7, 2012 4:02 PM

Settlement Talks Officially on Between EEOC and Kelley Drye & Warren in Age Bias Case

Posted by Sara Randazzo

Negotiations aimed at ending litigation pitting the Equal Employment Opportunity Commission against Kelley Drye & Warren over an allegedly discriminatory retirement policy once employed by the firm are heating up in the wake of a judge's order requiring Kelley Drye to turn over previously sealed documents that could shed light on its internal dealings.

The Am Law Daily noted last month that a resolution in the matter appeared to be at hand after EEOC lawyer Jeffrey Burstein told U.S. magistrate judge Michael Dolinger in a filing that he would like "to update the Court on settlement negotiations."

Now, according to an order (PDF) filed Tuesday, attorneys from the EEOC and Kelley Drye are scheduled to meet Friday at 4 p.m. in New York to continue settlement talks.

To recap: The EEOC sued Kelley Drye for age bias in Manhattan federal district court in January 2010 on behalf of then-79-year-old labor and employment partner Eugene D'Ablemont. The basis of the suit was the claim that Kelley Drye's policy of forcing partners to relinquish their equity in the firm at age 70 was discriminatory.

Kelley Drye has since replaced that policy with one that calls for the firm's senior partners, like their younger counterparts, to be judged solely on their performance, then-chairman John Callagy told sibling publication The New York Law Journal in April 2010.

Word of the settlement conference comes less than a week after a Manhattan federal district court judge issued a decision requiring Kelley Drye to make public documents the firm would prefer to keep private.

On March 2, Manhattan federal district court judge Laura Taylor Swain ruled (PDF) that documents filed under seal beginning in March 2011 should be unsealed over Kelley Drye's objections. Swain ordered the firm to file more than a dozen previously sealed exhibits with the court by March 19. 

Based on the document titles listed in Friday's order, the information under seal largely concerns allegations made by Kelley Drye that D'Ablemont violated his partnership agreement by receiving payments from a company called TeleRep while still seeking and accepting a bonus from the firm, that the firm gave him and his family free legal services, and that he received excessive funding for client development activities. Other documents set to be unsealed include retainer agreements between the firm and some of its clients and portions of Kelley Drye's partnership agreement and policy manuals.

In its push to keep the information under seal, Kelley Drye argued that the documents in question were not "judicial documents" because they were filed as part of the discovery process and not in connection with a dispositive motion for summary judgment.

In her order, Swain disagreed, explaining that even though the documents were indeed shared in discovery, the court relied on many of them when deciding the EEOC's motion for partial summary judgment. That, Swain ruled, gave them "judicial document" status.

The firm also argued that the release of the documents "could leave Kelley Drye at a competitive disadvantage" by allowing rivals to seek business from its clients, recruit its lawyers, and copy its policies. Swain also rejected that argument, finding that Kelley Drye offered no proof that the information was so proprietary or personal as to cause the firm actual harm.

Through a spokeswoman, Kelley Drye declined to comment on the case. Requests for comment about whether a settlement by the parties would make Swain's order moot were not immediately returned Wednesday by either Kelley Drye's lawyer, Bettina Plevan at Proskauer Rose, or EEOC lawyer Burstein.

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