Damages ruling awaited

Judge weighs limit to claims in Pao gender bias case

SAN FRANCISCO — A potential partial victory for Kleiner Perkins Caufield & Byers may be in the works as a Superior Court judge considers granting a motion that would throw out Ellen Pao’s claim for punitive damages in her high- profile sex discrimination case.

Judge Harold Kahn on Tuesday asked Pao’s attorneys to make a better case for punitive damages and warned them that they have not provided sufficient evidence to prove malice. The judge’s request came after Kleiner’s attorney petitioned the judge to toss out Pao’s claim for those damages, and to the surprise of many in the courtroom, Kahn said he would consider granting it.

Kahn will announce his ruling either Friday afternoon or on Saturday, he said at the close of trial Wednesday.

A ruling in favor of Kleiner Perkins would spare the venture firm from paying the colossal sum of money that punitive damages usually call for — in this case, likely more than $ 100 million — and protect it from a court order to reveal its finances. A favorable ruling would also give the firm a strategic win in this nearly month- old gender discrimination trial by slightly weakening Pao’s case.

“Strategically, it’s huge,” said David Kadue, a Los Anglesbased employment law attorney with firm Seyfarth Shaw. “It would be a big win for Kleiner Perkins.”

If Pao’s attorneys can’t prove that the Kleiner partners acted with malice, then the discrimination Pao allegedly experienced is considered, in the eyes of the court, a less harmful type of discrimination.

“You can find discrimination in cases where ( the) employer … wouldn’t have done this if she was a man, but they weren’t necessarily evil about it,” Kadue said.

Pao has sued Kleiner Perkins for gender discrimination, retaliation and failure to protect women at the firm from discrimination. She is seeking $ 16 million in lost wages and bonuses; she was fired in October 2012, five months after filing this suit. She has also asked for an unspecified amount in punitive damages.

No matter the judge’s ruling on punitive damages, Pao’s trial will continue and she can still win the $ 16 million.

To receive punitive damages, Pao’s attorneys must prove she was subjected to malice, fraud or oppression — the standard for punitive damages under California law — during her sevenyear tenure at Kleiner. This is tougher than simply proving gender discrimination occurred, say legal experts, and this is where Kahn says Pao’s attorneys have fallen short.

In these types of cases, punitive damages are usually at least nine times the amount awarded in compensatory damages, Kadue said. Last November, AutoZone was ordered to pay out $ 185 million in punitive damages in a gender discrimination case. That was on top of the $ 872,000 the former female employee who sued them was awarded in compensatory damages.

Should the judge rule that Pao can ask for punitive damages, the jury will decide whether Kleiner acted with malice and how much they should pay for it, in addition to deciding whether Pao should be awarded her $ 16 million.

Closing arguments are expected early next week.