Judgment Day Could Be A Long Way Off In The Kleiner Sex Scandal

Ellen Pao, Kleiner Perkins

Photo: AP/Marcio Jose Sanchez

Lawyers for Ellen Pao and for Kleiner Perkins, the venture-capital firm she’s suing for gender discrimination and retaliation, are back in court tomorrow.The next stop may be California’s 1st District Court of Appeal.

That’s because Pao and her employer—she’s still working there as the case grinds on—are fighting over whether the case should go to arbitration, a forum which is generally seen as favourable to employers, since proceedings are private and it’s not heard by a jury.

And under California law, when a party loses a motion to compel arbitration, that party has an automatic right to appeal. Furthermore, there’s a precedent that says nothing else can happen in the case until the arbitration issue is settled.

Pao’s lawyers are arguing that she’s suing the firm of Kleiner Perkins, which is really a management company which oversees various funds. And Pao and Kleiner do not have an arbitration agreement.

She did sign documents with some Kleiner funds, however, that included an arbitration clause.

The judge ruled against Kleiner Perkins earlier this month in both his tentative and final rulings. But he allowed Kleiner’s lawyers to refile their motion to compel arbitration on other grounds. Those new arguments are getting a hearing tomorrow in San Francisco Superior Court.

Even if Kleiner loses a third time in these preliminary motions, it wins something valuable—a delay in the case moving forward, whether it’s in open court or closed arbitration.

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