Ellen Pao is contesting Kleiner Perkins’ claim that she is on the book for reimbursing the firm’s nearly $1 million bill in legal fees incurred during the five-week trial brought by Pao’s $16 million gender discrimination lawsuit.
In documents filed Friday with San Francisco Superior Court, Pao’s attorneys argued that Kleiner Perkins doesn’t have legal ground to collect repayment for its whopping $972,814 bill for court and expert witness fees, and asked the court to dismiss the VC firm’s reimbursement claim. Kleiner Perkins last month filed court documents detailing the venture firm’s costs and argued it has the right to recover court costs and witness fees for two reasons: The firm won the gender-bias case against Pao on all claims, and Kleiner offered Pao a settlement of nearly $1 million in 2014, which she turned down.
Not true, Pao’s attorneys (not surprisingly) countered on Friday. They said Kleiner’s costs were excessive and unnecessary — one expert witness billed for almost $98,000, and another expert witness had more than $3,000 in expenses for travel from Boston for a single day of testimony. And that nearly $1 million settlement offer last year? It “was not made in good faith” nor was there any reasonable expectation that Pao would accept it, said Pao’s attorney Alan Exelrod. At the time of the offer, Pao’s had already amassed $660,000 in attorney’s fees and court costs.
But Pao’s best argument lies in the California Supreme Court decision handed down on May 4 in the case of Lorning Wing Williams v. Chino Valley Independent Fire District, which said that the winning party in a civil rights lawsuit does not have grounds to recover trial fees unless they can prove that the plaintiff’s claim was unreasonable or brought “without foundation.”
The decision reads: “an unsuccessful FEHA (Fair Employment and Housing Act) plaintiff should not be ordered to pay the defendant’s fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.”
Should this ruling apply to Pao’s case, a court would have to find Pao’s discrimination lawsuit totally frivolous in order to require her to reimburse Kleiner Perkins. It would be a hard sell to declare a trial that focused international attention on the venture and tech industries’ shortage of women and long-standing gender bias frivolous.
Kleiner Perkins said it would waive all legal fees if Pao agreed not to appeal the case. She has until June 7 to appeal, and that option is very much on the table for Pao.
Pao sued the venture capital firm in 2012 after working there as the chief of staff for legendary investor John Doerr and later as an investor, claiming she had been passed over for promotions and subjected to sexual advances. She also claimed Kleiner Perkins fired her and stymied her career as retaliation after she made a formal complaint about the firm’s discriminatory culture. She lost her case in March when a jury found in favor of the Kleiner Perkins.
Photo: Ellen Pao arrives at Superior Court in San Francisco, Calif., Friday afternoon, March 27, 2015, to hear the verdict in her gender discrimination lawsuit against Kleiner Perkins Caufield & Byers. By Karl Mondon/ Bay Area News Group.
