Diversity Training

Late last month, Magistrate Judge Franklin Noel ordered counsel in the UnitedHealth Group Inc. (NYSE: UNH) derivative litigation to provide:

information concerning the minority and gender membership in your respective law firms, and on the proposed leadership team.

and:

a statement advising the Court of any legal-ethical issues raised concerning each individual attorney, and that attorney's law firm in the past ten years.

The AP has a story on the Judge Noel's order, here and The Volokh Conspiracy has a post here.

While a number of firms had filed motions seeking appointment as lead counsel, only two groups of firms filed a response to Judge Noel's order. They took slightly different tacks, though.

As an aside, neither response took issue with the use of the term "gender" as opposed to "sex" to describe the information the Court sought. There is a difference, as noted in Encyclopædia Britannica's definition of gender identity. Gender is:

an individual's self-conception as being male or female, as distinguished from actual biological sex. For most persons, gender identity and biological characteristics are the same. There are, however, circumstances in which an individual experiences little or no connection between sex and gender.

Back to the business at hand.

The firms of Chestnut & Cambronne, P.A. and Shapiro Haber & Urmy LLP comprise one group, and represent Jan Brandin, the first plaintiff to file a derivative complaint.

Having been given little guidance by Magistrate Noel as to how inclusive the response was to be, the response filed by Chestnut & Cambronne and Shapiro Haber & Urmy, categorized and specifically identified the attorneys working on the litigation in a number of ways, including their gender and sexual orientation.

The other group to file a response to Magistrate Noel's order, represents the "Pension Fund Group" and includes the firms of Bernstein Litowitz Berger & Grossmann LLP and Grant & Eisenhofer, P.A.

The Pension Fund Group's response included statistical information on all of the employees at both firms as well as a breakdown of the attorneys, noting the number and percentage of each group that "identify themselves as members of racial or ethnic groups commonly described as 'minorities' in the United States." While noting that certain attorneys at Bernstein Litowitz are openly homosexual, the Pension Fund Group's response did not specifically identify those attorneys.

Another interesting note.

Judge Noel's order also requested information on the "makeup of previous steering committees to which [the firms] have been assigned."

Both Bernstein Litowitz and Grant & Eisenhofer indicated in their response that they had not served in any capacity on a "steering committee," as they regularly serve only in the capacity of either lead or co-lead counsel.

For those lead plaintiff junkies out there (all three of you), the Pension Fund Group is composed of:

• St. Paul Teachers' Retirement Fund Association
• Public Employees' Retirement System of Ohio
• State Teachers' Retirement System of Ohio
• Public Employees' Retirement System of Mississippi
• Jacksonville Police & Fire Pension Fund
• Louisiana Municipal Police Employees' Retirement System
• Louisiana Sheriffs' Pension & Relief Fund
• Fire & Police Pension Association of Colorado
• The Connecticut Retirement Plans And Trust Funds

Note - The responses and Judge Noel's order are being hosted by FileDEN, a free hosting service - please let the author know if you have any trouble accessing those documents.