Racial Quotas? So Ordered!

David Lat, Above the Law, September 23, 2010

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As reported in the American Lawyer, earlier this week Judge Harold Baer (S.D.N.Y.) issued an unusual order. On Monday, Judge Baer directed two firms serving as lead counsel in a securities class action to “make every effort” to staff the case with at least one minority and one woman:

ORDERED that Co-Lead Counsel, Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP, shall make every effort to assign to this matter at least one minority lawyer and one woman lawyer with requisite experience. . . .

If federal judges can run school districts and prison systems, law firms should be a piece of cake, right?

Here’s Judge Baer’s justification:

This proposed class includes thousands of participants, both male and female, arguably from diverse backgrounds, and it is therefore important to all concerned that there is evidence of diversity, in terms of race and gender, in the class counsel I appoint.

Judge Baer’s reasoning could apply to pretty much any sizable class action. This case is a securities class action against an apparel company; it doesn’t involve racial or gender discrimination claims. (In fact, defendant Gildan Activewear seems quite supportive of racial and gender diversity–check out the Benetton-esque models on their website.)

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More questions from Krauss:

Presumably Judge Baer is not multi-sexual and is perhaps not multi-racial; yet presumably he can nonetheless decide cases impartially. Is Judge Baer making affirmative action a pre-requisite for appearances in his court? Perhaps he has clerks of different races and sexes? If so, is he implying that judges whose chambers are not “diverse” are incapable of rendering justice?

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Alas, His Honor’s ordering of race-driven staffing practices strikes me as, to quote Paris Hilton, “so not hot.”

P.S. If companies want to encourage racial or gender diversity by taking law firm demographics into account when hiring outside counsel, as many do, that’s their prerogative–and it may very well be a laudable effort to encourage diversity in the legal profession. But a private actor using its pocketbook to create incentives for diversity is quite different from a federal judge ordering firms to staff a particular case with minorities.

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[Judge Baer’s order can be downloaded as a PDF file here.]


When it comes to diversity in the bar, most of the attention is paid to large law firms. But a New York federal judge appears intent on shining the light on plaintiffs firms.

In an order signed on Monday (pdf), Manhattan U.S. District Court Judge Harold Baer ordered two firms serving as co-lead counsel in a securities class action against Gildan Activewear–Labaton Sucharow and Robbins Geller Rudman & Dowd–to “make every effort” to assign at least one minority and one woman to the case.

“This proposed class includes thousands of participants, both male and female, arguably from diverse backgrounds, and it is therefore important to all concerned that there is evidence of diversity, in terms of race and gender, in the class counsel I appoint,” wrote Baer.

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