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Titan of The Plaintiffs Bar: Wayne Outten

Law360—Scott Flaherty

As leader of a firm full of top litigators and someone who has practiced employment law since the early days of the field, Outten & Golden LLP's Wayne Outten has plenty of knowledge and backing to pursue an employee's rights in court. But he has often opted for a different approach to solving his clients' problems, one steeped in counseling and advice.

“As a litigator, I was one of the early users and proponents of mediation in employment disputes, starting in the late ‘80s,” Outten said. “That was the larger approach that I was taking, to help employees without regard to whether they have any cognizable legal claims.”

Outten — who spent early parts of his career as a general commercial litigator before turning exclusively to employment law — serves as managing partner of the firm he co-founded, Outten & Golden, which exclusively represents employees in a range of individual and class action employment matters. He also maintains an active practice of his own, primarily helping senior-level executives and professionals in disputes over compensation, contracts, separation agreements and other issues.

And while Outten has a wealth of litigation experience and a cadre of formidable litigators working alongside him, he said his legal practice has, for a long time, included a significant number of matters that never reach a courtroom. His focus, he said, is largely on solving problems for his clients, even when the issues don't rise to the level of dispute that is bound for court or arbitration.

“I came to see myself as a counselor and problem solver, more than as a litigator, in my day-to-day practice,” he said.

Though his approach of advising and solving problems for clients has been consistent throughout his time representing employees, Outten's path to employment law took several years to develop. After graduating from law school at New York University in 1974, he spent two years as a clerk for a federal judge in Oregon. In 1979, he joined a firm that eventually became Lankenau Kovner & Outten LLP, where he initially worked on commercial litigation, as well as some employment matters.

But around the same time he started in private practice, Outten was approached by Norman Dorsen, an NYU law professor and then-president of the American Civil Liberties Union, who had a request that would help set Outten on his path toward employment law: Dorsen asked Outten to write an ACLU guide on the rights of employees.

Outten spent five years researching and writing the book, which came out in 1984, and from there, transitioned more and more of his practice to employment law. In 1985, Outten helped found the National Employment Lawyers Association, an organization of lawyers that primarily represent workers in employment matters, and by 1990, his practice was entirely focused on representing employees.

“I happened to be in the right place at the right time. I started practicing law near the beginning of the development of employment law,” said Outten, referring to the early years of his career. “When the book came out, the amount of employment law I was doing accelerated.”

When Lankenau Kovner & Outten merged with Davis Wright Tremaine LLP, making it hard for Outten to continue representing employees without running into potential conflicts, he and Anne Golden — who had served as an associate at Lankenau Kovner & Outten — started their own firm in 1998.

“He really wanted to be the full-service plaintiffs firm and have the ability to handle any kind of issue that might arise in a plaintiff-employee practice,” said Joseph Garrison of Garrison Levin-Epstein Richardson Fitzgerald & Pirrotti PC, a plaintiffs attorney and former NELA president who has known Outten since before the start of Outten & Golden.

From the early days of the firm — which now has more than 40 attorneys in New York, Chicago and San Francisco — Outten's values and a strong business sense shaped the firm's course and put it on a path toward becoming one of the premier employee-side firms in the U.S., according to his law partner Golden, who described Outten as “a remarkable lawyer and a remarkable man.”

“He has an absolutely steady moral compass; he knows what is the right thing to do in any circumstance,” Golden said. “He knows business, as well as doing good, so the firm has been well run from the very start.”

In the firm's first few years, Outten and his colleagues were involved in, among other matters, a major sex discrimination case against Morgan Stanley. The suit, which alleged a pattern of discrimination against Allison Schieffelin and other professional women in the company's institutional equity division, was brought by the U.S. Equal Employment Opportunity Commission, and Schieffelin intervened as a plaintiff in the case, represented by Outten and his firm. After about three years of litigation, the suit settled in 2004 on the eve of trial, on terms Outten described as favorable.

Morgan Stanley agreed to pay $54 million in total and to put in place training and policy changes to address the alleged discrimination, according to court filings. Outten's client Schieffelin, whose allegations included that she was fired in retaliation for lodging a complaint of discrimination, ended up with an award of $12 million as part of the deal.

Outside of Outten & Golden, lawyers on both sides of the employment bar said the firm has built a strong reputation largely as a result of Outten's direction, and that, in turn, Outten's status as a leading figure in the bar has been amplified by the success he has had building his firm and assembling top-flight attorneys to work there. Those who know Outten described him as an ethical and principled advocate for employees, and said those characteristics, in addition to his early and continued leadership in the field, have earned him high esteem.

“He’s a very principled person. He’s practical, but he's very principled,” said Garrison. “He’s extremely ethical and that is a good thing when you're representing employees.”

Michael Curley of Curley Hessinger & Johnsrud LLP, a management-side attorney who has negotiated against Outten, explained that Outten's approach to practicing law has generated trust among management-side lawyers, even though they and Outten often find themselves “180 degrees apart.” As an example, Curley said if he ever had a personal issue crop up that could affect a deadline on a matter, Outten would likely work around the issue, as opposed to trying to taking advantage of a delayed deadline.

“Even when you disagree,” said Curley, “you know that he's not going to blindside you.”

Curley also noted that Outten has infused his values into the culture of Outten & Golden, which has given the firm a strong reputation in the employment arena.

“I also give Wayne a lot of credit because, in addition to being a really extraordinary lawyer in his own right, he has also surrounded himself with top quality … partners and associates,” said Curley. “They’re all good people, and really good lawyers.”

Outten, for his part, said working one-on-one with clients — helping and counseling them even outside the context of pursuing a legal claim — remains a “very gratifying” part of his work. But he also takes pride in charting a course for the firm he and Golden started, calling it a “great pleasure” to have had the chance to attract and retain “a lot of really, really talented lawyers” who are dedicated to representing employees.

"I've worked really hard to provide great service. Over time, that adds up — I’ve had thousands and thousands of satisfied clients,” he said. “I think all of that has been amplified by the growth of my firm into a large and preeminent presence in the field.”