SerpApi.Org
At the end of its first day of deliberations, the jury in a sex discrimination lawsuit against Nike had a question for the judge.
Jurors had yet to deliver its verdict on the merits of the case, but in a request read aloud in court late Tuesday, they sought “more guidance” on how to calculate punitive damages should they find against Nike.
The question from the jury came near the end of a day of legal wrangling during which Nike argued they had grounds for a mistrial, or at the very least, cause for the judge to issue new instructions to the jury while it continued deliberating.
The arguments continued the often rancorous back and forth between attorneys over what evidence jurors should be allowed to hear about alleged sexual discrimination and harassment at the Beaverton sportswear giant. What evidence could be raised in the trial was the subject of months of pre-trial legal briefing.
The lawsuit, filed in 2018, made sweeping claims, which Nike has consistently disputed, about the treatment of women at the sportswear giant. Three other plaintiffs in the lawsuit settled their claims last year, and repeated efforts to have the suit certified as a class action about a much broader set of allegations have been unsuccessful.
Nike has successfully narrowed the focus of the trial to the pay and promotion experiences of a single employee, Heather Hender, who worked as an engineer at the company between 2015 and 2020.
As the jury deliberated on Tuesday, Nike’s lawyers filed a motion with the court and argued that Laura Salerno Owens, one of Hender’s attorneys, made “intentional and reckless” misrepresentations to the jury in her closing argument. The jury got the case after Salerno Owens finished speaking.
In the motion, filed Tuesday around 11:30 a.m., Nike argued it didn’t have a chance to rebut the “false” and “incorrect” closing statements that it claims Salerno Owens made to the jury. It asked the judge to give the jury an instruction to disregard the statements, but it also said it was not “confident” that would fix the problem given that the jury had already started deliberating. The company said it might ask for additional “relief,” including a mistrial.
In its response, filed with the court less than three hours later, Hender’s legal team argued Nike’s lawyers didn’t object to any of the statements at the time and instead waited until the jury began deliberating to raise its concerns. They also contended that Nike’s lawyers were plucking snatches of Salerno Owens’ closing argument out of context, and that their requested relief was improper and potentially prejudicial to the jury.
Baggio heard oral arguments on the matter around 5 p.m.
Daniel Prince, a lawyer who argued for Nike, said Salerno Owens made statements that took the jury “out of the role” of “fact finding.”
After oral arguments, Baggio sided with Hender’s legal team and declined to issue new instructions to the jury.
“I don’t read anything or understand anything that would require a curative instruction,” she said.
Baggio also decided not to give the jury additional information about punitive damages.
“You have received all of the jury instructions, including those related to punitive damages,” Baggio said she would inform the jury.
The questions on the verdict form about the amount of punitive damages, if any, are the final two questions on the six-page document. They required that jurors answer “yes” to previous questions about whether Hender proved her claims by a “preponderance of the evidence.”
The jury will resume deliberations at 9 a.m. Wednesday.
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