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Rebecca Pontikes (Pontikes)
Oh, OK...because I'm completely procrastinating from the work I have to do today, as Jared asked, here is my "toot":
http://www.masslawyersweekly.com/index.cfm/archive/view/id/452212
If you can't get to the article through the link (I hate the picture anyway), here is the article cut and pasted:
Risky Business?
Two young attorneys go after local law firms
By Julia Reischel
Published: December 21, 2009
The mere mention of Rebecca Pontikes' name is enough to make a veteran employment litigator go red in the face.
"That claim she's brought is frivolous!" the defense attorney, who asked not to be named, sputtered recently about a case filed by the 37-year-old plaintiff-side employment lawyer.
Pontikes and Tara M. Swartz, partners at a tiny Boston firm, have a habit that maddens their colleagues at the bar: They regularly sue other law firms and their male leaders for employment discrimination and other violations, and they aren't quiet about it.
The defense bar hasn't been quiet in return.
"If you get a reputation for going after law firms, then people in the community are going to take note of it," says Jay Shepherd, a Boston lawyer who is defending Leonard Kopelman, the named partner of the law firm Kopelman & Paige, from a lawsuit brought by Swartz.
Together, Pontikes, a diehard feminist who curses like George Carlin, and Swartz, a 34-year-old conservative Republican who describes herself as a "rules girl," have sued three law firms since 2008, when they started their firm together.
Swartz is suing Kopelman and K&P for allegedly not allowing Kopelman's personal assistant to take time off under the Family and Medical Leave Act when she was stricken with cancer.
Pontikes, meanwhile, is currently pursuing a claim against the law firm Dechert at the Massachusetts Commission Against Discrimination, alleging that it terminated an employee after he took leave to care for his children.
And she is also representing attorney Kamee B. Verdrager in a lawsuit against Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, in which Verdrager accuses the firm and its chairman, R. Robert Popeo, of retaliating against her after she began having children.
Most lawyers agree that having so many cases against other law firms is unusual and risky and comes with a price in the legal community.
Whether what Pontikes and Swartz are doing is good or bad is a more divisive question. Some observers hail the pair as courageous - one lawyer describes them as "taking on the big boys, and the big boys don't like it." Others worry that they are ineffective at best, or frivolous and possibly harmful to their clients at worst.
But both Pontikes and Swartz insist that their work, which they describe as creative lawyering that many can't stomach, is effective for their clients. Pontikes says she has never lost a summary judgment argument. Swartz points to a track record of clients she claims to have helped, including a public school janitor who was fired for being gay. The work, they say, is worth any price.
"I have no ulterior motive. I seek no public office. I seek no appointment," Swartz says. "I don't care if the whole city likes me or not."
"I like suing those guys," Pontikes says. "Honestly, it doesn't bother me to sue law firms."
She adds: "Do these people like me a lot? No. Are they mean to me and act like I'm a moron? Yeah. Does that really bother me? Not particularly."
Rules apply to everyone
Law firms aren't the only ones getting sued by Pontikes & Swartz. Raytheon, Verizon and Children's Hospital Boston, along with public schools and municipalities across the state, have encountered them as often-successful opposing counsel. But, somehow, it's the cases against the law firms that seem to get under the skin of defense attorneys.
"To accuse a different type of employer of, say, discrimination is one thing, but to accuse a law firm of violating laws seems more serious," says Shepherd, who is defending Kopelman against Swartz's client, Patricia Elkins.
Elkins had worked as Kopelman's personal assistant for seven years when she was diagnosed with cancer in 2005. She alleges that no one at the firm informed her that she was entitled to FMLA leave, so she struggled to maintain her 40-hour-a-week schedule while undergoing chemotherapy until she eventually resigned. (Kopelman did not return a call from Lawyers Weekly and declined to comment through Shepherd.)
Shepherd says those details, as recounted in Swartz's complaint, are unnecessarily salacious and the fact that Swartz spoke to Lawyers Weekly about the case while it was still at the MCAD was provocative.
"I've got to say, it just strikes me as premature," he says. "Yes, it is public record, but if a law firm like that did not notify you that they had filed at the MCAD, it's highly likely that you wouldn't know."
Now, after more than a year of discovery ("I don't think he sits down and gets deposed very often," Swartz says of Kopelman), Elkins' case survived a motion for summary judgment in October and looks to be headed to trial.
Swartz says she is driven by a sense of outrage that Kopelman thought the rules didn't apply to him.
"That is a big law firm," she says of Boston's Kopelman & Paige. "It has an employment law department. They know very well what the rules are, especially about something as big as the FMLA. It applies to everyone."
Similar logic is at work in the case against Dechert, which is currently before the MCAD.
"I'm suing on behalf of a man, the primary caretaker of his children, whose wife had a disability," Pontikes says. After the father, an attorney, took the full complement of his FMLA leave to care for his children in 2008, he was terminated.
Pontikes sees the case as a chance to use a new theory she is doggedly trying to advance: the concept of "family responsibility discrimination."
"They said he lacks commitment and works on his own schedule," she says. "That is code for: ‘He was not behaving as the stereotypical male should.' That's what these family responsibility cases are about: people not acting according to the stereotype that the employer thinks they should."
Timothy C. Blank, managing partner of Dechert's Boston office, declined to comment on the case. In a written statement, spokeswoman Beth Huffman said, "We do feel it is completely meritless and plan to defend it vigorously."
‘Incurred the wrath'
The firm that has defended itself most vigorously against Pontikes & Swartz is Mintz Levin, which has been locked in combat with Verdrager since she filed an MCAD complaint in December 2007.
Pontikes filed a wrongful-termination lawsuit in Suffolk Superior Court last month on behalf of Verdrager, which accuses Mintz Levin of ignoring her complaints about sexually tinged comments from a male co-worker, retaliating against her with unfavorable performance reviews, and demoting her after she took maternity leave. In the complaint, Pontikes names Popeo, one of the most powerful lawyers in Boston, as a defendant. (The firm declined to comment on the case.)
"It obviously incurred his wrath and incurred the vengeance of his firm," says Pamela E. Berman, a friend of Pontikes who practices at Adler, Pollock & Sheehan in Boston. "Mintz's response has been no holds barred."
Mintz Levin hired Joan A. Lukey of Ropes & Gray to defend the charges and, according to Wendy A. Kaplan, a Boston civil rights attorney who is representing Verdrager along with Pontikes, set out to destroy Verdrager's chances of ever working as a lawyer again.
So far, they have partially succeeded. Verdrager, who told Lawyers Weekly that she turned down a $700,000 settlement offer to maintain her right to talk about the case, recently moved to New Hampshire with her family to launch a solo law practice, an indication that she may not be able to get a job in Massachusetts. While Kaplan estimates that the case could eventually win a seven-figure verdict or settlement, it's a gamble. (Verdrager did not respond to a request for comment by press time.)
By taking Verdrager's case, which initially had been handled by another lawyer, Pontikes has prompted murmurs of disapproval from some of her fellow plaintiffs' attorneys who worry that, in her zeal to promote women's rights, Pontikes allowed Verdrager to proceed with a claim that really should have settled. One says she wonders whether Verdrager "was well counseled to go this far out on a limb."
But going out on a limb is Pontikes' style. Not only is she suing Mintz Levin and Popeo himself, she has gone out of her way to criticize the firm elsewhere. After an annual survey by The American Lawyer named Mintz Levin a family-friendly firm last year, Pontikes penned a letter to the magazine pointing out that the firm is being sued for gender discrimination.
Mintz Levin responded with its own letter, in which it accused Pontikes of being error-prone.
"We can only hope that [Pontikes] does a better job gathering facts on behalf of her clients before stating her opinion with such certainty," attorney Michael S. Gardener wrote on behalf of the firm.
Still, Pontikes is unbowed.
"I think the Verdrager case is an illustration of why women are not making it up to the top," she says. "It's made a lot of waves because she doesn't take things lying down, and she's not going quietly and being a good girl like they want her to be."
‘Not necessarily helpful'
Some suspect that the angry and dismissive responses to Pontikes and Swartz have something to do with the fact that they're women.
"It's one of the things where it's not only the issues they're raising, but the fact that they're young and they're female," Berman says. "I think people often think, ‘Well, they don't know what they're doing.'"
She points out that other civil rights attorneys, such as Harvard Law School Professor Alan M. Dershowitz, get credit for trying aggressive and creative legal strategies against the powers that be.
"They don't get the respect Dershowitz gets for being the Harvard brain," she says of Pontikes and Swartz. "He might be crazy, but he's crazy smart. They don't get that kind of respect."
According to Kaplan, who herself carved out a niche suing another sacred cow, Harvard University, "Women still have to be twice as good as men. Basically, my self-image is of someone climbing up the side of a mountain using her fingers."
Inga S. Bernstein is an attorney at Zalkind, Rodriguez, Lunt & Duncan in Boston who sued Bingham McCutchen last year on behalf of a former associate who said she had been slipped a date-rape drug at the firm's Christmas party. Bernstein doesn't believe that her gender has shaped the reaction to her lawsuit. She does say that it shaped her appetite for filing it, however: She's a feminist and wanted to make an impact.
"If we want our industry to be what we all should expect it to be, which is free of discrimination and committed to promoting full opportunity for everyone, then sometimes push is going to come to shove, and these cases need to be brought," she says.
But a surprising number of female plaintiffs' attorneys with fearsome reputations are in no rush to praise the litigation style of Pontikes and Swartz. Shannon Liss-Riordan, a Boston employment lawyer known for her creative wage-and-hour actions brought on behalf of skycaps and strippers, refuses to comment on Pontikes despite having worked with her in the past.
Kathy Jo Cook, a former Women's Bar Association president who specializes in plaintiff-side employment discrimination cases, cautions that high emotion isn't generally an effective litigation tactic.
"What I try to do is keep the emotions in check," she says. "I think that in part is something that comes with experience. The older you get, the less exciting it gets to spend several hours writing nasty letters. And you come to learn that it's not necessarily helpful anyway."
Ellen J. Zucker, a feminist lawyer who won a $4.5 million verdict against the city of Cambridge in an employment discrimination case earlier this year, says that it's "very important that there are attorneys willing to take on powerful interests in order to assure that the anti-discrimination law's promise is met."
But, she adds, sometimes "the goal that we might have to push the law to get it to acknowledge certain circumstances has to take a backseat to our clients' very real needs."
Other employment lawyers who sue law firms tend to do it quietly, says Robert S. Mantell, president of the Massachusetts Employment Lawyers Association, who has brokered settlements with law firms for clients over maternity leave.
"In the [cases] that I have done, I did not get into a lawsuit," he says. "I negotiated something, and it's been kept quiet. That's the way the parties like it."
Mantell points out that his firm boasts Elizabeth A. Rodgers, a female attorney who pursues employment cases "very aggressively and very competitively" but doesn't attract the kind of criticism Pontikes and Swartz do.
"I've never seen anyone disparage her," he says.
Despite the critics, Pontikes & Swartz's reputation might be good for business.
David C. Casey, an employment defense lawyer at Littler Mendelson in Boston who is jousting with the firm in a case about family responsibility discrimination in the plastic surgery department at Children's Hospital, says P&S might have found itself a niche market.
"It does sometimes occur that a lawyer or a law firm will have success bringing a certain kind of claim against a certain kind of defendant, and that will attract repeat business in that area," he says.
Indeed, Pontikes confirms, that is already happening, especially from like-minded acquaintances at the WBA. Maybe suing other lawyers isn't so risky after all.
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