Kleiner Perkins seeks legal fees or dropped case from Ellen Pao | Hacker News Reader

Kleiner Perkins seeks legal fees or dropped case from Ellen Pao

nytimes.com

109 pointsnsfmc94 comments

Other court filings revealed that last November, Kleiner had offered Ms. Pao $964,502 to settle, an amount based on the projected costs of the case.

That she didn't accept the settlement says a lot for her belief in the case (or, at the very least, her odds of winning).

It's hard to tell whether her position was more financial gambling or principle (that is, who knows).

She sought $16 million -

http://www.mercurynews.com/business/ci_27444497/ellen-pao-se...

She clearly believed monetary compensation was important as part of the case. So then the question becomes, what % of a likelihood of victory would you need to believe in, to go after $16m vs $964k. Or alternatively, perhaps $964k is such a (relatively) modest sum for the context, that it simply wasn't a consideration for her. She can probably earn more than that writing a book about the ordeal.

She was seeking $16M in lost wages, and potentially much more in punitive damages. I think, had she won, she could be looking at a ridiculous check close to $100M.

Correct, the punitive damages aspect was immense:

"Ellen Pao can sue Kleiner Perkins for up to $160 million in damages"

http://www.businessinsider.com/ellen-pao-can-sue-kleiner-per...

http://www.mercurynews.com/business/ci_27760383/judge-ellen-...

Yeah, that is beyond ridiculous.

You always ask for the moon when you sue someone - it doesn't cost anything to keep adding zeros. I doubt she believed she'd actually get something like that, though. If she did she's a fool.

It's not clear that winning would have involved punitive damages. That typically requires a much higher threshold of egregious intent to cause harm, which I think it's fair to say is not as well supported by the facts and testimony here. Not that it'd be an impossible outcome, but much less likely.

Incidentally, her husband was in the hole to the tune of $16 million, which I imagine had nothing to do with how much money she was seeking.

Certainly the judge thought it had nothing to do with it, which is why it couldn't be introduced as evidence.

All the articles I've looked at say her husband owes way more than $16 million. Where did you get that number?

Or perhaps reflects poorly on her competency as a would-be partner.

That's a pretty good estimate!

I don't understand all the defending of Pao on HN. She was pretty clearly in the wrong and there is not much evidence to the contrary. It's counter-productive to the cause of gender equality to continue to defend her.

what is your deal?

I'm afraid I don't understand what it is you're asking. If you could clarify I'd be glad to go into the details of my "deal".

The deal being what is the point of posting 2 top level comments with the exact same content and intent. Asking not to get downvoted unless people provide evidence, and you not providing any evidence for starters.

Look very closely at the usernames. We are not the same person, just similar usernames (the other one has two 'v's). Not associated with the other poster at all, it's just a coincidence. I also don't think it's the "exact same content".

ah, noted... that's my bad.

There were definitely some erroneous or unsubstantiated claims she made in the court, some of which was testified against by people who she quoted.

She lost the case. Sure. Can you enumerate why you are asserting she was "pretty clearly in the wrong?"

> “If Kleiner wanted to look classy, it could have said, ‘This was hard fought and we obviously disagree with your view, but it’s in the interest of all parties to walk away. In the meantime, there have been lessons learned and we are going to fund organizations that focus on glass ceiling issues,’ ” Ms. Katz said.

Here in non-fantasy land, why would anyone do as Ms. Katz suggests?

You quoted the reason -- looking/being classy. If you value that more than a million dollars, and a good many do, and you felt said action would have that effect, you might choose to do it.

"To look classy" has to be the silliest reason posited that a business would do something. For a lot of people, the "classy" ship has already sailed vis a vis Kleiner.

>“If Kleiner wanted to look classy, it could have said, ‘This was hard fought and we obviously disagree with your view, but it’s in the interest of all parties to walk away. In the meantime, there have been lessons learned and we are going to fund organizations that focus on glass ceiling issues,’ ” Ms. Katz said.

Just donate to my rainbow coalition...

What they actually said was "Promise not to pursue this case any further or pay us $1 million."

> "Promise not to pursue this case any further or we will try to collect $1 million from you"

Fixed that for you. There is no guarantee that they will recover all or part of those costs if they decide to pursue it.

Yep! And I quoted the article's quote from a critic.

I felt it was worth pointing out one of the most patently ridiculous things I've ever heard, and the fact that it was given play really tells you how the NYT leans.

It's a mistake to think of the NYT as a monolithic entity that deliberately leans one way or another. I've got a few friends who work there, and they all report that "the" Times is actually about five distinct fiefdoms engaged in a constant battle with one another. It's a real shark tank, politically speaking, and not the kind of place with the sort of absolutist, top-down structure (like, say, Bloomberg) that's conducive to straight party lines.

That said, it was a bullshit link-bait headline buy hey, traffic, right?

Revenge: a dish best not served at all.

Wouldn't she owe $0 if she doesn't appeal?

But she could get $100M if she appeals and wins. Paging Mr. Pascal...

I think it's important that a precedent is set. Pao was being marginally more creative than patent trolls. The legal system needs to demonstrate that making a joke of discrimination, from both sides of the coin (by participating in it, or by crying wolf), will not be tolerated.

There are millions of people facing real discrimination issues and Pao made a joke of them all by trying to turn their struggle into her profit.

It's also important to note that being unable to prove your case in court is not the same thing as crying wolf. You make a frivolous lawsuit, you get punished, yes. But I have not heard arguments to support the idea that Pao made the claim in bad faith, or negligently.

Legally: yes.

However, the deluge of evidence contradicting discrimination was loud and clear. From a logical (not legal) standpoint you would have to be incredibly stupid to not notice that other women are getting ahead in your company, and Pao isn't stupid.

Smaller companies cannot defend themselves against patent trolls. What's to stop Pao would-bes from taking advantage of that fact too? How would that affect the female position in the job market?

It seems reasonable that you don't drag someone through a $900000 lawsuit on a weak hunch. This "discovery" bullshit is exactly how patent trolls get away with what they do.

In ethical wars there are some battles you don't want to win, and some that should never even take place. Everyone sits on a distinct side of the fence and when they see blood they go for it, it's pathetic and ultimately weakens their position. It's about reaching a compromise and $900000 is not a compromise. Kleiner is being the bigger person here and suggesting that everyone walk away from this, yes it does have PR implication for them, but it is ultimately the right thing to do.

> From a logical (not legal) standpoint you would have to be incredibly stupid to not notice that other women are getting ahead in your company, and Pao isn't stupid.

I don't see any deluge of women getting ahead at Kleiner Perkins. In fact, it does seem like an overwhelmingly male environment.

> Smaller companies cannot defend themselves against patent trolls. What's to stop Pao would-bes from taking advantage of that fact too? How would that affect the female position in the job market?

Patent trolls use the threat of costly litigation to pressure smaller companies into settlement. Pao's suit was costly on both sides, but she was not trying to pressure them into settling. First of all, they did offer a $1M settlement, and she pursued the case anyway. This is at least strong evidence that she thought that she would prevail in court. Secondly, there was no risk that Kleiner Perkins would go bankrupt from the costs of litigation. They're a venture capital firm, for crying out loud, they have lots of capital.

I'm not saying that it's okay to sue Kleiner Perkins because they have deep pockets, I'm saying that she's not using the threat of bankruptcy to coerce a settlement out of them.

> It seems reasonable that you don't drag someone through a $900000 lawsuit on a weak hunch. This "discovery" bullshit is exactly how patent trolls get away with what they do.

Patent trolls, again, rely on the fact that expensive discovery proceedings can bankrupt a company before they are able to successfully defend a patent lawsuit. As we've established, that was not an issue here. Discovery serves a useful legal purpose: you need evidence to pursue a case, and without legal force behind a request for evidence, Kleiner Perkins would have no reason to provide it. You can't issue subpoenas without filing the suit first, because you need to show that your suit has merit and that you have standing before you can begin discovery. Now, there have been actual abuses of the discovery process. This just isn't one of them.

Pao lost, so she compensates Kleiner Perkins for their expenses, or she accepts their offer. I don't see why "being wrong in court" would be worthy of punishment.

> They're a venture capital firm, for crying out loud, they have lots of capital.

I thought this hand-to-mouth mentality was something that was exclusive to the 3rd world. Apparently I was wrong. People smell blood and attack. This is not about KPMG. Have "big" corporates like Microsoft, Apple, Samsung and Google ever had problems fending off patent trolls? No.

The "crying wolf" story goes a lot further than the mere once-off act of laying false claim: which is why I specifically use that phrase. You might read the story and find out what happens to the boy who cried "wolf."

Everyone is determined to win every fight, instead of actually reaching a goal. Feminism is going nowhere at this rate.

> I don't see why "being wrong in court" would be worthy of punishment.

We're done here. Was that ever a suggestion of mine?

Please read the next paragraph.

> I'm not saying that it's okay to sue Kleiner Perkins because they have deep pockets, I'm saying that she's not using the threat of bankruptcy to coerce a settlement out of them.

My argument does not even concern Pao, my argument concern the bigger scheme of things and this Pao trial as one single battle. This specific battle should have never happened, but it did, and feminists (who Pao claims to be fighting for) need to disown this farce as fast as possible.

That paragraph is relevant to defending Pao's virtue: which I have no interest in and was never talking about. I have no opinion of the woman one way or another, an opinion of her is completely irrelevant because neither of us is likely to ever meet her. It is clear that this isn't a debate about something important and, therefore, we're done.

The easiest way to end a conversation is not to say, "we're done", bot to simply not say anything.

It was my understanding that you were talking about Pao because you made specific claims about her case (that she was "crying wolf", in your terms) and I was interested in seeing how you would support that position, because I hadn't heard arguments that she had sued in bad faith and was interested in listening to those arguments if they existed.

I think the title is a bit misleading. Kleiner Perkins is asking Ellen to pay for its legal fees or simply " if she forgoes any appeal and lets the case die, the firm will forgive and forget, or at least move on."

yeah, it's really, let's put this behind us, and we'll waive any claims we might have, and BTW this is how much it cost us that you might be liable for.

Yes the NYT title is a bit off. Pao was always on the hook for those fees, and KP is offering to waive them if she doesn't appeal. Note that KP already filed a separate countersuit, which brought Pao's husband to the attention of the media, before the main case began. WSJ also says Pao is not outright rejecting the legal fees deal:

http://www.wsj.com/articles/BL-DGB-41461

Thanks, we changed the title to try to reflect this.

Good for Kleiner. It seems their reputation was being dragged through the mud on a merit-less case of "she said they said". No factual evidence was presented justifying Pao's viewpoints.

Before you downvote, please provide factual evidence and I will gladly update this comment.

There were performance reviews that said she did well, they were mixed and complicated like all performance reviews. Also given that the defense tried to discredit her by noting that she sent e-mails to herself it seems strange to call "she said they said" invalid evidence since without those e-mails there would be nothing at all.

What would hard evidence even be for this type of case? Is there going to be an e-mail between partners saying "we should not promote Ellen because she's a woman"?

Did Ellen Pao prove her case conclusively? I think not. Was it clear that there were plenty of issues going on at the time that Kleiner could've handled a lot better? I think so.

Even perfect performance reviews doesn't entitle one to be promoted. Why does everyone have this idea in their head, that if they cross all the t's and dot all the i's the world is going to reward them?

Are we really going to start to sue over disillusionment?

When a woman who has perfect reviews is passed over for a promotion by a man who doesn't... ya, they have some room to be pissed off and gripe.

And yes, if you do everything your employer asks of you and then some, you should be rewarded. What is this world coming to when doing so is considered "average"?

If a promotion is available, then you are probably right. But if no position is available you could be the perfect employee and not get a promotion and there would be nothing wrong with that.

Being passed-over implies a promotion was available.

> And yes, if you do everything your employer asks of you and then some, you should be rewarded. What is this world coming to when doing so is considered "average"?

You probably should, but the reality of a capitalistic system is you probably won't.

I have a lot of friends who did everything they were told would get them good jobs, a stable pay, money to have a house, a vacation... but they have nothing. Not to discredit Pao, but I sometimes just laugh at people lamenting about not getting their millions whilst I'm sitting here, drinking with my suicidal buddy who's lamenting about not being able to land a job, after having submitted his resume to over a hundred places.

So if a man got passed over and a woman got the promotion, would the man have a good case, in your eyes?

How about if they were both the same gender?

It seems like there's a conversation we're not having here, and a few people should not be allowed to force us to not have it.

Playing devil's advocate, being perfect at position X doesn't necessarily mean you'll be a good fit at position Y, and being less than perfect at position X doesn't mean you won't be a perfect fit in position Y.

Right. Remember Peter's Principle:

Selection of a candidate for a position is based on the candidate's performance in their current role rather than on abilities relevant to the intended role. Thus, employees only stop being promoted once they can no longer perform effectively, and "managers rise to the level of their incompetence."

To be clear, they fired her, they didn't just "not promote" her.

Doing well in performance reviews doesn't mean much. It was pretty clear that she was not easy to work with, and a lot of her coworkers didn't like working with her. I have no doubt that she was a brilliant employee, but that doesn't really matter if no one wants to work with her.

There's a reason why so many companies put a lot of emphasis on "culture fit".

She was a fine culture fit. I can tell you this because they kept her around for quite a while. Bad culture fits don't last, especially not at a well-run firm. Culture fits aren't soul mates, there are still normal difficulties and things to work through.

People had trouble working with her possibly after she brought up issues of sexual harassment and discrimination, but there's actually something under the law to protect her from this, anti-retaliation laws, which she tried to sue Kleiner over and lost, but that part of the case definitely seemed like there was some merit to although possibly not enough to meet a preponderance of the evidence.

In reality bad culture hires stick around because most people are polite and assume it's just them, and They give difficult people second chances, they put up with them for a long time because they're not used to being around people that are that "off".

So you can't assume just because someone isn't dismissed quickly that they automatically were a good hire. I've seen plenty of bad hires kept around because people were unable to grok why this person was difficult. They give them lots of second chances and it took time before everyone finally gave up. I'm not saying that's what happened here, what I am saying is you can't jump to a conclusion that because someone wasn't fired that means they were a good fit.

> I can tell you this because they kept her around for quite a while.

what alternative did they have? A lawsuit "they gave me bad performance/fired me because i'm a woman"? A lawsuit which they would lose with much higher probability and much higher damages. They could only wait until she leaves on her own.

>People had trouble working with her possibly after she brought up issues of sexual harassment and discrimination

People had trouble working with her possibly because she is a total jerk - she complained that the assistant of her colleague was sending brain scans of dying from cancer mother from office.

Wrt. promotion - promotion isn't something employee is entitled to. If you think company doesn't value you enough - get an offer at other place and you will immediately see how much your company really values you. Did Kleiner tried to keep her when she was leaving? Seems like they didn't. Why? Because she is a woman?

Now at Reddit she installed "no negotiation" hiring policy. She seems to be unaware that in case of good employees it isn't the prospective employee who negotiates, it really his current employer who doesn't want the employee to leave. Probably her former employers has always just let her leave easy, without counters :)

She slept with a coworker. Who does this without realizing one of you may have to go?

Hundreds of thousands of people do this on a daily basis without having to leave their job.

And yet a whole lot of them do end up leaving. If you carry on an office romance, particularly when one or both of you is married, that's a possibility. I've seen it at my office - it's pretty common for people to be unable to work together after the breakup.

I don't know. Any details of the case aside, "shut up or pay $1m" doesn't ever look very dignified. Besides, by doing this they've put the case back in the news again - leave it and it goes away.

How would it go away? Ellen Pao's going to appeal against the verdict which will lead to Kleiner-Perkins being in the news again.

I reject your plea not to downvote - not because I disagree (that is not an appropriate reason to downvote a comment on HN from my understanding) but because of two things:

1. You said "good for Kleiner". Whether you agree or not, KPCB is massive firm now asking threatening a $1MM suit against an individual who had good faith claims and that just feels really icky to be called "good". I'm fully aware that the burden of proof for damages rests with the plaintiff and she failed that claim, however this is nowhere near the frivolous lawsuit standard. I am going to also reject your plea for factual evidence because I'm not doing your research for you in this instance, but read over some summary judgements in frivolous lawsuit claims that have been ruled in the plaintiffs favor and compare it to the facts of this case.

2. You asked not to be downvoted. Pleas w/r/t voting do not belong on vote based social networks and forums. They are purely manipulative.

You probably would be taking a different tone if it were you whom was personally sued by someone which cost you a million dollars out of pocket, and then have every claim against you dismissed.

Why should KPCB be any different in trying to recover money from a court case they won on every count? Just because they have $X amount of money more than you or I?

I'm not sure a company can be personally sued.

> I'm not sure a company can be personally sued.

Depending on what you mean by "personally sued", this is one of the main reasons limited liability corporations exist: So the shareholders aren't personally responsible for lawsuits the company gets involved in. This is where "corporate personhood" comes from, the idea that, in some limited circumstances, corporations can function as people to make legal proceedings possible.

Suing a company to redress a grievance is feasible. The company has an office, assets, and so on. Trying to track down and sue everyone who has or had a financial stake in the company is not feasible, and if it were, companies would cease to exist because nobody could stomach the risk of all of their personal assets being up for grabs if a lawsuit doesn't go their way.

Yes, exactly for that reason. Wealthy organizations have more than an equal share of resources, and should carry an increased burden of the process when in conflict with individuals.

Is your intent to prevent companies from becoming successful, or would that just be a happy side effect of such a policy?

Edit: The question was sincere, and I can't think of any reason for which a corporation of means should be in some way more responsible for frivolous lawsuits than one of lesser means, or of an individual.

The logical outcome, to me, seems to be that if there were some inequal burden in the eyes of the law for "wealthy companies" that it would invite frivolous lawsuits on the grounds that suing wealthy companies is now a zero risk endeavor.

If I, as an individual, could sue Google with zero fear of retaliation, I can't see why I wouldn't, on the off chance that I might land a pretty large windfall, if I were to win.

Can you explain more on why it's fair for a party who was judged to be innocent to bear the costs associated for claims judged as false?

> who was judged to be innocent

Because this was not a criminal trial and therefore the judgement does not determine "guilt" or "innocence?"

Because monied interests always have more power whether they are the plaintiff or the defendant in a case?

No evidence was found after lots of expensive legal discovery. If there was any evidence of guilt, they should have been able to find something that at least made them look bad, but they did not.

You are correct that the proper term for a civil case is "not responsible" but frankly that sounds silly to non-lawyers, as it's too similar to "irresponsible."

I don't think it's fair to characterize the amount of evidence as "no evidence." There are plenty of folks who think Kleiner looks bad in this case. There is not enough to reach the confidence level required for the plaintiff to succeed. That is a more accurate thing you could say.

I saw lots of allegations but no real evidence. That was, essentially, why the case was lost: for all the things said, nothing of substance could be corroborated. I don't think they even found a bad review....

That makes it really hard for me to believe she was a victim of anything but her own imagination.

"I don't think it's fair to characterize the amount of evidence as "no evidence." There are plenty of folks who think Kleiner looks bad in this case."

There were a lot of people who decided Kleiner looked bad based purely on the word of Ellen Pao.

Verbal recollections are not, however, evidence.

I believe I have sufficient experience to say that I would not change my opinion if I experienced your hypothetical scenario.

Because a million bucks is nothing for them and they obviously behaved poorly on a number of occasions.

> an individual who had good faith claims

How do you know this?

Nobody is even alleging bad faith claims at this time, the claim seems to be about lack of evidence. I addressed that separately.

Then why was it an 8-4 vote? Didnt it come down to one juror?

Wow, it's super brave of you to be defending those poor maligned billionaires. Takes a lot of courage to stand up for an underdog like KPCB.

Isn't she super rich too and a big CEO? Anyways, it's silly to take a side simply because one side has more money than the other, that has nothing to do with it.

I guess it depends on how big you consider Reddit to be.

It wasn't a frivolous or "merit-less" case.

Before she initiated the lawsuit, she did not know what would be found in discovery. From her standpoint at the time, a suspicion of gender discrimination was valid. She hoped to find a "smoking gun" in discovery.

There was no smoking gun, and she was far from a sympathetic or innocent plaintiff (the affair with Mr. Nazre really killed her) so she lost.

Every bit of testimony from a Kleiner employee should be thrown out, at least on subjective matters like job performance. A person who is employed by one party or the other cannot possibly be expected to give a valid representation. No one's going to testify against someone who can end his career inside of a couple months (obviously with phony performance reviews, because no employer will admit to firing someone over inconvenient testimony).

Do I think that the jury made the right call? Sadly, I'd say "yes". I think that she did end up on the wrong side of an exclusionary culture (that may have been for reasons other than her gender; you never know if it's ethnicity or gender or health or age, the last of which can cut against young or old depending on the group) and was therefore evaluated inaccurately and unfairly. She failed to prove it, though. It would have been very different if discovery had brought forward a smoking gun that proves gendered discrimination... which didn't happen, but there's no way she could have possibly known that.

This is the thing about discrimination that most HN posters don't get. It's not like the people who are guilty of it (and there are many, along age and gender and ethnic and class lines) make it obvious. They don't. It's a silent crime. Most of the time, the victims have no idea that it is happening. They might have suspicions, but it's hard as hell to prove. Ellen Pao tried to do so and came close, but ultimately failed in proving anything conclusive.

Making claims one is unable to substantiate and dragging a case through discovery is normally considered an abuse of the legal system, as we saw in, e.g. SCO vs. IBM, where they also hoped to be able to eventually find an IBM document somewhere that might prove them right.

The fact that they did not find any such "smoking gun" after all that legal discovery makes me believe that they are honest, as that means they couldn't find anything at all after a lot of searching.

A big difference is that SCO spend years in "discovery" always claiming that some sort of evidence was just around the corner. The only reason that judges allowed that charade to go on was out of an extreme abundance of caution (probably too much).

> Making claims one is unable to substantiate and dragging a case through discovery is normally considered an abuse of the legal system

A judge can decide to kill said "fishing expedition" too. It's not like these fishing expeditions just "happen" and once initiated are unstoppable. If it was ludicrous, then the judge should have denied it.

Yes, but as your own post alludes, the judges didn't even shut down a SCO-level fishing expedition for... how many years was that? I lost track and I used to follow Groklaw daily.

The fact that this got shut out so quickly simply points to the fact that there was essentially nothing to substantiate Pao's legal claims.

There's a difference between an unsuccessful lawsuit and a frivolous one (i.e. one without merit, intended to harm or extort). All evidence indicates that she made the claims in good faith.

The purpose of discovery in these cases is that you don't know what has been said about you. That's why, if you think you might be a victim of discrimination, you often have to sue in order to get that information.

In her particular case, she found no proof. That said, she couldn't have possibly known before the discovery process that it wouldn't be there.

If she were sifting through the files to find breaches of irrelevant, outdated laws and regulations, that'd be a fishing expedition. In this case, the communications that were discovered were relevant to her (justified, because even though she wasn't able to prove gender discrimination, she did prove that, except for John Doerr, they were unprofessional and horrible toward her) grievance.

I am thinking of removing anti-discrimination laws completely (not just to create exceptions) and allowing regulators (such as anti-trust) to impose anti-discrimination conditions on specific companies instead.

So Kleiner spent $972,815 on their defense. That is absurd amount of money, and I am sure Ellen Pao did not have those kind of funds. That also made it hard for her to win this case

The fact that she was clearly in the wrong also made it a hard case for Pao to win.

Checks out -- lit up red on my Clearly-in-the-wrong-o-meter

Many lawyers will work on contingency (you split the winnings if you win) if they believe you have a strong case...

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