Lawyers squabble over Kleiner Perkins’ revelation of Pao settlement demand Alan Exelrod claims negotiations should have been kept confidential

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Posted by Legal Team On August 15, 2022

Ellen Pao’s lawyer is miffed that defense attorney Lynne C. Hermle revealed what he claims were confidential settlement negotiations in which the former Kleiner Perkins Caufield & Byers partner offered to drop her appeal for $2.7 million.

In a motion filed late last week, Alan B. Exelrod, one of the attorneys representing Pao in her failed gender discrimination suit, complained about the Orrick, Herrington & Sutcliffe LLP partner’s revelations.

“Aside from the question of the propriety of leaking to the press what Plaintiff conveyed to Kleiner as confidential settlement discussions, these disclosures of post-trial offers by Kleiner have absolutely no relevance…” Exelrod wrote.

Hermle won a defense verdict in March for the venture capital firm against Pao. Now the chief executive officer of Reddit Inc., Pao alleged gender discrimination and retaliation. Pao v. Kleiner Perkins Caufield & Byers, CGC-12-520719 (S.F. Super. Ct., filed May 10, 2012).

In an earlier court filing, Kleiner Perkins referenced an offer from Pao to drop her appeal, which she has since filed in the 1st District, in exchange for the firm paying $2.7 million of her attorney fees and costs.

“Nonsense,” Hermle said in response. “Ellen’s lawyer said nothing whatsoever to me, nothing, about wanting the demand to be confidential. That’s likely why his pleading doesn’t say that he asked for it to be confidential or that there was any agreement or representation about confidentiality.”

In his motion, Exelrod, who is of counsel at Rudy, Exelrod, Zieff & Lowe LLP, described being surprised when he read details about the settlement offer in the media.

Despite her resounding loss in court, Pao and her story drew international interest and sparked conversations about male domination in the venture capital and technology industries.

V. Joshua Socks, a plaintiffs’ employment attorney with The Armstrong Law Firm, described the revelation of settlement negotiations as “bad practice.”

“Kleiner Perkins is undermining the public policy behind [California Evidence] Code 1152 and making public what would otherwise be inadmissible,” Socks said. “If everything was made public from settlement negotiations, attorneys would likely not engage in them as often.”

Exelrod declined comment for this story.

A costs hearing is scheduled Thursday morning before San Francisco County Superior Court Judge Harold E. Kahn. The hearing will address the $972,000 in costs and fees that Kleiner Perkins tallied during the five-week trial.The firm has offered to drop those costs, which Pao’s attorneys contend are exorbitant, if Pao would drop her appeal.

Whether or not those costs should be paid by Pao is also contested – Hermle argues Pao should pay since she turned down a pretrial offer made under California Code of Civil Procedure Section 998, Exelrod argues his client is protected by the Fair Employment and Housing Act.

The original version of this article can be found HERE.