Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Employment Attorneys See Business Gains Amid Weinstein Scandal

By Christine Simmons
December 01, 2017

While labor and employment practices aren't usually known as the most profitable groups at large firms, some are predicting an uptick in business. For plaintiffs attorneys and corporate defense lawyers handling employment matters, #MeToo may translate into a surge in new clients.

The heightened awareness of sexual harassment in the workplace, triggered by the daily publicity of harassment accusations against Hollywood producer Harvey Weinstein and others, has resulted in a surge of client calls to plaintiffs attorneys who litigate such claims.

Meanwhile, defense attorneys, bracing for more litigation, said they are fielding more calls from corporate clients that want training conferences and advice on how to handle internal complaints and internal investigations.

While it's too soon to track any possible change in the number of employment lawsuits in court and charges filed in the U.S. Equal Employment Opportunity Commission (EEOC), both plaintiff and defense attorneys are expecting a wave of litigation in the upcoming months, created by the public accusations against Weinstein and the “#MeToo” movement of women publicly sharing their own harassment stories.

'Surge' of New Claims

Derek Smith, a plaintiffs attorney who runs 17-attorney Derek Smith Law Group, said his firm has received almost double the number of calls from prospective clients who have potential sexual harassment claims. “We're getting tons more,” he said.

Smith said all the new matters are still in the investigation and draft stage of the litigation, but he expects them to be filed within a couple of months with the EEOC, leading to some new court filings.

“I'm getting so many more calls, and as a result, more clients,” he said. “It's a mathematical certainty” that the emboldening of potential plaintiffs will lead to more lawsuits, Smith said.

“They're feeling empowered to take a stand, to do something about what happened to them,” he said. “They are hearing what happened with Harvey Weinstein and they're thinking not only can they do something about it, but it's OK to stand up for yourself.”

“I've been practicing since 1995. I don't recall any surge” that compares with this period, Smith added.

D. Maimon Kirschenbaum, a plaintiffs attorney at Joseph & Kirschenbaum, also said more clients have retained his firm, and he is expecting to bring more matters to the EEOC and later in court. “In the last [few] weeks, the world has turned on its head,” Kirschenbaum said. “The Weinstein thing was a total game-changer for women coming out in the open and saying they were sexually harassed.”

“It seems to be, in the last month, more women have come out and shared their sexual harassment experience than in the last 10 years,” he said, referring to accusations of harassment in several industries, such as in legal, film, entertainment, in the news business, financial services and at restaurants.

Employers React

Defense attorneys representing management and corporations said they haven't yet seen a rise in employment litigation, but several said in interviews that they expect one.

Felice Ekelman, a Jackson Lewis principal representing employers, said clients are reporting that they have more internal complaints, in which employees report misconduct to human resources departments or managers, often the first move in a lawsuit. Meanwhile, her firm is increasingly being asked to conduct preventative training, which entails teaching managers legal obligations and how to respond to complaints.

Several companies have contacted her to say, “Hey, we haven't had management training in a while, let's get it on the calendar,” Ekelman said.

Mark Konkel, a partner at Kelley Drye & Warren who also represents employers, recently returned from a training conference at a Fortune 100 company.. The conference was in part motivated by the increased sensitivity to workplace sexual harassment, he said.

While Konkel said he hasn't observed a rise in lawsuits or internal complaints, “that is almost certain to occur.” In the meantime, he has observed more requests for training and a change in the type of internal complaints and internal investigation requests he sees. Konkel said “the tenor of the complaint has changed,” with employees now more often alleging a “culture of harassment” and “systemic discrimination.”

“In the past, the source of the harm was just one bad actor,” he said. “Now I think all of this publicity may encourage complainants to think of the source of the harm, not so much of the individual person, but a business that permits it.”

That's especially true for new companies, such as in the tech industry, that do not have “institutional maturity where they have dealt with compliance over a long period of time” and that have established a “contrarian brand” on the idea they don't do things in a traditional way, Konkel said.

“I do think there's something new here, of public awareness of the viability of these claims and corresponding public sensitivity,” he said.

Lawyers on Speed Dial

In perspective, training conferences are just a small portion of the business for large law firms and defense attorneys, but such conferences will likely deepen the relationships with clients in the long run.

“Nobody is going to get rich from sexual harassment training,” Konkel said, “but I do think there's a shift to address systemic issues in the workplace. Many employment attorneys will be on the short list for speed dials.”

Meanwhile, attorneys are returning to old cases, too. Kathleen Peratis, a partner at Outten & Golden representing employees, said while the volume of complaints that come to her attention has stayed steady, she has observed inquiries in the last several weeks from those who have already settled their sexual harassment claims and want to know if they can breach their confidentiality agreements in their settlements.

'”I don't think I've ever had that question” prior to a few weeks ago, she said.

Although attorneys are fielding more calls now, it's unclear whether the urgency will last long. “Everything comes in cycles,” said Smith, the plaintiffs attorney. “I'm hopeful that women will continue to feel empowered,” but he said it's possible “there will be some softening” over the coming months.

*****
Christine Simmons writes about the New York legal community and the business of law. Email her at [email protected] and find her on Twitter @chlsimmons. This article also appeared in the New York Law Journal, an ALM sibling publication of this newsletter.

While labor and employment practices aren't usually known as the most profitable groups at large firms, some are predicting an uptick in business. For plaintiffs attorneys and corporate defense lawyers handling employment matters, #MeToo may translate into a surge in new clients.

The heightened awareness of sexual harassment in the workplace, triggered by the daily publicity of harassment accusations against Hollywood producer Harvey Weinstein and others, has resulted in a surge of client calls to plaintiffs attorneys who litigate such claims.

Meanwhile, defense attorneys, bracing for more litigation, said they are fielding more calls from corporate clients that want training conferences and advice on how to handle internal complaints and internal investigations.

While it's too soon to track any possible change in the number of employment lawsuits in court and charges filed in the U.S. Equal Employment Opportunity Commission (EEOC), both plaintiff and defense attorneys are expecting a wave of litigation in the upcoming months, created by the public accusations against Weinstein and the “#MeToo” movement of women publicly sharing their own harassment stories.

'Surge' of New Claims

Derek Smith, a plaintiffs attorney who runs 17-attorney Derek Smith Law Group, said his firm has received almost double the number of calls from prospective clients who have potential sexual harassment claims. “We're getting tons more,” he said.

Smith said all the new matters are still in the investigation and draft stage of the litigation, but he expects them to be filed within a couple of months with the EEOC, leading to some new court filings.

“I'm getting so many more calls, and as a result, more clients,” he said. “It's a mathematical certainty” that the emboldening of potential plaintiffs will lead to more lawsuits, Smith said.

“They're feeling empowered to take a stand, to do something about what happened to them,” he said. “They are hearing what happened with Harvey Weinstein and they're thinking not only can they do something about it, but it's OK to stand up for yourself.”

“I've been practicing since 1995. I don't recall any surge” that compares with this period, Smith added.

D. Maimon Kirschenbaum, a plaintiffs attorney at Joseph & Kirschenbaum, also said more clients have retained his firm, and he is expecting to bring more matters to the EEOC and later in court. “In the last [few] weeks, the world has turned on its head,” Kirschenbaum said. “The Weinstein thing was a total game-changer for women coming out in the open and saying they were sexually harassed.”

“It seems to be, in the last month, more women have come out and shared their sexual harassment experience than in the last 10 years,” he said, referring to accusations of harassment in several industries, such as in legal, film, entertainment, in the news business, financial services and at restaurants.

Employers React

Defense attorneys representing management and corporations said they haven't yet seen a rise in employment litigation, but several said in interviews that they expect one.

Felice Ekelman, a Jackson Lewis principal representing employers, said clients are reporting that they have more internal complaints, in which employees report misconduct to human resources departments or managers, often the first move in a lawsuit. Meanwhile, her firm is increasingly being asked to conduct preventative training, which entails teaching managers legal obligations and how to respond to complaints.

Several companies have contacted her to say, “Hey, we haven't had management training in a while, let's get it on the calendar,” Ekelman said.

Mark Konkel, a partner at Kelley Drye & Warren who also represents employers, recently returned from a training conference at a Fortune 100 company.. The conference was in part motivated by the increased sensitivity to workplace sexual harassment, he said.

While Konkel said he hasn't observed a rise in lawsuits or internal complaints, “that is almost certain to occur.” In the meantime, he has observed more requests for training and a change in the type of internal complaints and internal investigation requests he sees. Konkel said “the tenor of the complaint has changed,” with employees now more often alleging a “culture of harassment” and “systemic discrimination.”

“In the past, the source of the harm was just one bad actor,” he said. “Now I think all of this publicity may encourage complainants to think of the source of the harm, not so much of the individual person, but a business that permits it.”

That's especially true for new companies, such as in the tech industry, that do not have “institutional maturity where they have dealt with compliance over a long period of time” and that have established a “contrarian brand” on the idea they don't do things in a traditional way, Konkel said.

“I do think there's something new here, of public awareness of the viability of these claims and corresponding public sensitivity,” he said.

Lawyers on Speed Dial

In perspective, training conferences are just a small portion of the business for large law firms and defense attorneys, but such conferences will likely deepen the relationships with clients in the long run.

“Nobody is going to get rich from sexual harassment training,” Konkel said, “but I do think there's a shift to address systemic issues in the workplace. Many employment attorneys will be on the short list for speed dials.”

Meanwhile, attorneys are returning to old cases, too. Kathleen Peratis, a partner at Outten & Golden representing employees, said while the volume of complaints that come to her attention has stayed steady, she has observed inquiries in the last several weeks from those who have already settled their sexual harassment claims and want to know if they can breach their confidentiality agreements in their settlements.

'”I don't think I've ever had that question” prior to a few weeks ago, she said.

Although attorneys are fielding more calls now, it's unclear whether the urgency will last long. “Everything comes in cycles,” said Smith, the plaintiffs attorney. “I'm hopeful that women will continue to feel empowered,” but he said it's possible “there will be some softening” over the coming months.

*****
Christine Simmons writes about the New York legal community and the business of law. Email her at [email protected] and find her on Twitter @chlsimmons. This article also appeared in the New York Law Journal, an ALM sibling publication of this newsletter.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
COVID-19 and Lease Negotiations: Early Termination Provisions Image

During the COVID-19 pandemic, some tenants were able to negotiate termination agreements with their landlords. But even though a landlord may agree to terminate a lease to regain control of a defaulting tenant's space without costly and lengthy litigation, typically a defaulting tenant that otherwise has no contractual right to terminate its lease will be in a much weaker bargaining position with respect to the conditions for termination.

How Secure Is the AI System Your Law Firm Is Using? Image

What Law Firms Need to Know Before Trusting AI Systems with Confidential Information In a profession where confidentiality is paramount, failing to address AI security concerns could have disastrous consequences. It is vital that law firms and those in related industries ask the right questions about AI security to protect their clients and their reputation.

Generative AI and the 2024 Elections: Risks, Realities, and Lessons for Businesses Image

GenAI's ability to produce highly sophisticated and convincing content at a fraction of the previous cost has raised fears that it could amplify misinformation. The dissemination of fake audio, images and text could reshape how voters perceive candidates and parties. Businesses, too, face challenges in managing their reputations and navigating this new terrain of manipulated content.

Authentic Communications Today Increase Success for Value-Driven Clients Image

As the relationship between in-house and outside counsel continues to evolve, lawyers must continue to foster a client-first mindset, offer business-focused solutions, and embrace technology that helps deliver work faster and more efficiently.

Pleading Importation: ITC Decisions Highlight Need for Adequate Evidentiary Support Image

The International Trade Commission is empowered to block the importation into the United States of products that infringe U.S. intellectual property rights, In the past, the ITC generally instituted investigations without questioning the importation allegations in the complaint, however in several recent cases, the ITC declined to institute an investigation as to certain proposed respondents due to inadequate pleading of importation.