Julia Penny Clark Fifth Interview

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ORAL HISTORY OF JULIA PENNY CLARK
Fifth Session
December 27, 2018
Ms. Upadhyava: It’s December 27, 2018 this is the fifth session of the oral history of Julia
Penny Clark and the time is 5:23. So last time we met, Penny, we were talking
about some of the cases that you argued and some of the cases that you tried—
there is a 32 day bench trial I think you were telling me about as well as two of
your arguments before the Supreme Court, one that you argued and one that
you were at counsel table supporting an attorney who was arguing. I think you
wanted to talk about some additional cases you worked on and describe for me
your experiences on some other matters.
Ms. Clark: Sure. So the—I guess not necessarily in any particular order but fun stories
really is what this amounts to. In the early 1980s the law firm was defending
the Steelworkers Union in a lawsuit that was brought by a group of widows and
orphans in Northern Idaho right up in the narrow panhandle section. There had
been a fire in a silver mine up there and the Steelworkers represented the
miners. A fire in a hard rock mine was absolutely unheard of and it never
occurred before. Unlike coal, the walls of a metal mine like silver aren’t
flammable. There is no coal dust, there is nothing to explode. And
approximately 90 miners were killed in that underground fire. The widows and
orphans collected their pathetic small amounts of workers compensation and
then proceeded to sue every institution in sight, all the way to the United States
Government, saying that somebody should have perceived the hazards and
protected the miners from it. The Union was in that line because it had a right
in its collective bargaining agreement to form a safety committee and to walk
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through the mine periodically and point out hazards to the management. They
had been no better than anybody else at anticipating this unprecedented fire.
It’s easy to find records about this. It was called the “Sunshine Mine Fire” it
was, the mine was named the Sunshine Mine. There is an interstate highway
near Kellogg, Idaho where this happened and there’s a very very tall statue in
memory to the miners. It’s about I’d say 50-60 feet tall and it’s a miner with a
helmet that has a perpetual light in the helmet so it’s really quite touching. But
we had been litigating that case for a long time and I was brought into the trial
team as we were anticipating the possibility of having to go to trial. There
were multiple things that were quite amazing about it. It actually ended up
finally going to the Supreme Court of the United States and we won there. But
the, at first, let’s see when exactly did this happen…so the biggest issue in the
case from our perspective was a federal preemption question, because the
Union’s function in representing its members in the safety area, like everything
else, is heavily covered by federal law. We had made a motion to dismiss that
had been—I think it had gone up to the Idaho Supreme Court once before and
now—
Ms. Upadhyava: So you were in state court?
Ms. Clark: We were in state court.
Ms. Upadhyava: Okay. Okay.
Ms. Clark: Idaho state court! And so we were busy trying to get ready for a trial and
making a motion for summary judgment and so it was early 80s. ‘83 I think it
was. We were scheduled for trial to begin right after Thanksgiving. And you
imagine defending a claim made by widows and orphans in the Thanksgiving
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through Christmas holiday. And as it turned out—we couldn’t know it at the
time—it was the snowiest winter they had in Northern Idaho in many years and
the mountain pass that we would’ve been using to get our witnesses over from
Spokane was snowed in for days. So it was a good thing that the state court
granted our motion for summary judgment just a few weeks before trial was
supposed to start. And then the plaintiffs appealed that to the Idaho Supreme
Court. I don’t think there is an intermediate appellate court in Idaho so it went
straight to the Idaho Supreme Court. My colleague George Cohen argued the
appeal and the big issue was preemption, “Is this cause of action preempted by
federal law?” and if so, what does federal law say would have to be proven to
make out any kind of claim? And so we’re in the Idaho Supreme Court
hearing room which was very unpretentious. It was a ground floor hearing
room with windows all around and the judges, as I recall, were sitting almost
down on the same level as us. It’s not like they were on an elevated bench. If it
was elevated it was only barely elevated. And there was an U.S. flag at one
end and an Idaho flag at the other end. And just as George said “In this area,
federal law sweeps away all state law,” the Idaho flag fell over. It just
spontaneously fell down and everybody in the courtroom laughed, of course. It
was absolute perfect timing! You could not have made it happen any better
and nobody ever could figure out why the flag fell over but it did.
Ms. Upadhyava: That’s funny.
Ms. Clark: We still didn’t win in Idaho. That’s why it went to the Supreme Court of the
United States and the Supreme Court of the United States did rule that federal
law preempted. And that merely proving negligence would not be a cause of
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action and as a result the Steelworkers’ long, long case was finally over.
Ms. Upadhyava: And so it would have had to have been an intentional tort or extreme
negligence.
Ms. Clark: Pretty nearly yes. Deliberate disregard for some danger as opposed to
merely not noticing that there was some hazard there that nobody had
ever perceived before in such a mine. But that was totally one of my
favorite moments ever. It couldn’t be topped.
Ms. Upadhyava: How did the court react to that?
Ms. Clark: They laughed.
Ms. Upadhyava: Okay. Okay. That’s good!
Ms. Clark: And then the courtroom bailiff went and set it back up on its stand. And the
argument proceeded. But what a moment of great levity.
Ms. Upadhyava: And what was the name of the case?
Ms. Clark: In the U.S. Supreme Court it was United Steelworkers against Rawson. It
must have been in the Idaho Supreme Court Rawson v. Steelworkers. I don’t
have the Idaho case on my list here but Steelworkers v. Rawson is on here. It’s
a great moment. It was a great moment.
Ms. Upadhyava: Can’t plan that.
Ms. Clark: No. And one of my others was my first jury trial which was a retiree health
care case like my other jury trial was. This one was in the mountains of North
Carolina in federal court in Asheville in 2004 I believe.
Ms. Upadhyava: Would this have been the same courthouse that you—
Ms. Clark: The same courthouse I clerked in.
Ms. Upadhyava: Right okay.
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Ms. Clark: Absolutely. And in fact the district court judge had my judge’s
chambers.
Ms. Upadhyava: Oh wow.
Ms. Clark: So when we had chambers conferences I was up in the same offices where I
had worked as a law clerk. And this was very similar to the other case I
described where it was a collective bargaining agreement that called for the
company to provide healthcare to retirees. The people involved were rubber
workers who worked in a Dayco facility. But the—Trull vs. Dayco Products
is the name of the case. And it was a, ended up maybe being a seven day trial.
It was a little more than a week. But the thing that really stuck in my mind,
other than my first time before a jury, was that at the end of the trial after the
jury came back with a favorable verdict, one of the courtroom security officers
came over to me and said, “If we ever have a problem with our retiree
healthcare, I want you and your whole team to represent us.”
Ms. Upadhyava: Wow what a compliment!
Ms. Clark: And I thought what a great compliment.
Ms. Upadhyava: That’s a great compliment.
Ms. Clark: We had been there working really, really hard and we—I thought we did a
really good job for our clients and it was nice to have that kind of informal
recognition. So that was a fun moment.
Ms. Upadhyava: Did you like being before a jury?
Ms. Clark: Oh I loved it. Yes. And it’s hard to say why but it’s more of a connection. I
think when you’re trying a case to a judge, you’re thinking the judge has all of
his or her experience as a judge and is listening to the evidence in a different
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way and I think with a jury it’s just a sense that you can make a much more
direct connection with them and anticipate what members of this community
would be thinking about this case.
Ms. Upadhyava: Right.
Ms. Clark: It’s hard to really put a finger on it but I did very much enjoy the two jury trials
that I did.
Ms. Upadhyava: And what was the question for the jury? The interpretation of the collective
bargaining agreement? Or—
Ms. Clark: Yes it was. So the court decides that this agreement is reasonably susceptible
to the reading that we were putting forward which was that the employer’s
obligation to pay for these benefits would continue even after they, as they did,
closed the facility and there was no longer an active collective bargaining
agreement there. So that was the question. Does this obligation end when
there is no longer a collective bargaining agreement in force? Or does it carry
on for the lifetimes of the people who worked in the plant and who were
promised these benefits while they were working. You know they were told if
you work here so many years, 20 years, 25 years whatever the criteria were in
that particular collective bargaining agreement, when you retire the employer
will pay for your retiree healthcare. And it had always been administered that
way even to the point that the employer was maintaining about five different
health plans so that each group of retirees were frozen to the benefits that they
had when they retired. Even though the collective bargaining agreement that
had been in effect when they retired had long expired. So the employer was
acting as if these benefits were really guaranteed to those people based on the
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agreement in effect when they retired. Not subject to any later changes as the
employer had in fact on some occasions made benefits better and on other
occasions had started taking benefits away. And so the question for the jury
was, do you find that this collective bargaining agreement was intended to
provide benefits for the lifetime of the retirees rather than expiring when the
collective bargaining agreement ended? And so we had an awful lot of
evidence about what the bargaining had been between Union and the company
over the years. We put in a lot of evidence about what I call the stair step
arrangement of benefits so that it changes not at all when the collective
bargaining agreement expires but stays in effect for that cohort of retirees. We
had management witnesses who came in and said we always understood that
these were for lifetime and that the people who were working in the bargaining
unit had better benefits than we as management employees had; we always
knew that. I think there was even evidence of somebody who had been in the
bargaining unit, had moved into management, and when he retired, he had
chosen to retire with the bargaining unit benefit. Because he knew that they
were lifetime. So it was a very engaging trial and a lot of interesting evidence
from the people from the mountains. We had some people who were driving a
couple of hours each way to come in as jurors because the district extends so
far out into the farthest reaches of western North Carolina.
Ms. Upadhyava: And in those cases, you know the cases in North Carolina or in Idaho I
mean are these cases in which you engaged local counsel or did you feel
sufficiently comfortable?
Ms. Clark: I did. I had local counsel in North Carolina who came with me for jury
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selection and I asked him to do that because I number one had never tried a
jury case before and number two I thought if there are any special practices
here that they do locally, I don’t want to do something wrong and get the judge
impatient with me. So I had him there to advise me on that first day but then
he said, “You don’t need me anymore.” And off he went and the judge was
fine with that.
Ms. Upadhyava: Wow.
Ms. Clark: In Idaho we did have local counsel and I think, I just really don’t
remember If local counsel was going to play a meaningful role in the
trial itself.
Ms. Upadhyava: In the trial case Trull v.. Dayco Products case were you lead counsel?
Ms. Clark: Yes, I was.
Ms. Upadhyava: And what sort of teams did you have at the time or I guess this was your first
trial, jury trial. What sort of team did you have with you?
Ms. Clark: I had two associates. One was a young woman who had been a district court
clerk so she knew a lot about presenting cases to juries which was extremely
valuable for me. And the other was a young man from the office who…I
can’t remember. I mean he had more experience than she had as a lawyer but
I can’t remember exactly I don’t think he was a member of the firm yet. I
think he was still an associate. And we had one paralegal who was there
with us throughout the trial. And I gave my two colleagues witnesses to
examine and cross examine because there was just way more than I could do
on my own. And they did a very fine job. I was very pleased.
Ms. Upadhyava: Did you have more jury trials after this particular case?
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Ms. Clark: The other one that I had was the one in the Western District of Virginia which I
described to you before, the Volvo truck assembly plant in Dublin, Virginia.
Which had very similar issues.
Ms. Upadhyava: So in the Trull case your client is the Union?
Ms. Clark: Yes. The Union paid our legal fees and expenses, but the actual client
relationship was with several of the retirees.
Ms. Upadhyava: And how do you…I guess we can talk a little—I still want you to address
which matters—additional matters—you wanted to talk about but how did
you…I wanted to talk a little about client development. Who’s your client
representative and how do you engage with this person that’s representing
thousands of people?
Ms. Clark: Oh sure yeah.
Ms. Upadhyava: Tens of thousands of people?
Ms. Clark: Well the law firm has a very long relationship with Steelworkers Union. In
fact it’s probably—it was the firm’s first client because Arthur Goldberg, who
was then General Counsel to the Steelworkers Union, founded this firm in the
50s. And we deal with the Union through its General Counsel’s office. It has
a very good quality General Counsel in house and probably five or six lawyers
in the General Counsel’s office at all times. So this case, the one in North
Carolina had come to me in about 1999 when the company first started
charging the retirees for their medical insurance. And there was a succession
of lawyers in the General Counsel’s Office over the five-year history of the
case that I coordinated with. Two or three different people. But essentially they
would give me the contacts at the local Union and say “these are the people
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that you need to work with.” There, since the plant had long been closed, there
was no longer an active local Union but the people who had been officers of
the local union when the plant was open were still sort of like shepherding their
flock. And they coordinated with us.
Ms. Upadhyava: That’s impressive.
Ms. Clark: It was very impressive. Really good people. I mean these were elderly people
who gave up lots of their time to call their neighbors and to say, “Do you have
any testimony you might give?” and then they brought people into the
courthouse during the trial. They had about an hour-long drive over the
mountains. This was in summer so we didn’t have to worry about snow ever.
But they were bringing carloads of people and coordinating car and van pools
to bring people into the courtroom. And they did that throughout the trial. They
did it before as we were meeting with witnesses and they would just organize
everything. They’d find a place and bring people in to sit there and talk to us
and answer our questions and it was really an incredibly valuable service that
they provided. But coordination through the Union really had more to do with
the cost. You know they obviously wanted to know that we were litigating this
case at efficient cost because they were fronting the costs. They ended up with
a fee award that reimbursed them for I think everything they had laid out. But
at the time, of course, we didn’t know that and they were advancing the fees
and all the expenses so the litigation on behalf of this class of retirees…there is
simply no way that retired blue collar workers, even if they pooled all their
resources, could have paid for the costs of the transcripts, the depositions, the
lawyers’ travel costs. And there was nobody locally who knew these issues
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who would have been able to take the case and do a proper job of it. So it
really—the Union made it possible for these people to keep their benefits
that—it was a service the Union provided. It was a service that these former
local Union officers provided and we developed some wonderful relationships
with the local people and I just came to be very fond of them and still exchange
Christmas cards with some of them. They’re really good people.
Ms. Upadhyava: And were they mostly based out of North Carolina? Were there any members
or officers that you were dealing with outside of that District?
Ms. Clark: No. The people —other I mean Steelworkers are headquartered in Pittsburgh
but the people we were working with were all in the western part of North
Carolina. There was one former management person who was a very valuable
witness for us who had moved to Spartanburg South Carolina which is an hour
and a half drive away. And he was the only one outside of western North
Carolina that we were dealing with. So to give you a sense of the community
here…so the morning we were choosing the jury, and the lawyers on the other
side, they came from Michigan. The whole team on the other side were based
in must have been Grand Rapids. They’re anxious of course to find out if
anybody in the jury knows the witnesses or particularly key witnesses. So with
the entire jury pool sitting there the lawyer who’s representing the Company
says so “Do any of you know AJ Plemmons or Sam Wiggins?” But AJ
Plemmons is the former President of the Union and he was one of my chief
coordinators. And Sam Wiggins had been the plant manager and was
testifying on our behalf. He was one of the ones who said, “I understood those
were lifetime benefits.” And he bargained the contracts on behalf of the
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company so if we’re talking about testimony of how the parties dealt with each
other you know it was very valuable testimony. So the company’s lawyer
asked, “Does anybody here know either of these men?” And one woman
raised her hand, and he said, “So how is it that you know these two men?” She
says, “Oh I know them from church.” And the lawyer from the other side said
“Well…if they were to testify in this case and you heard their testimony, could
you possibly believe that they are not telling the truth?” And she paused for a
while and then she said “No.” In front of the entire jury pool! And I’m sitting
there going “Yes! Yes! Yes! Yes! Yes!” But of course suppressing it
completely because you have to keep the poker face.
Ms. Upadhyava: Why would you do that in front of the entire courtroom?
Ms. Clark: Before the entire jury pool! He’s asking “Is there any way…”
Ms. Upadhyava: Careful what you wish for…
Ms. Clark: “You know these two men from church. Is there any way at all that you could
believe they’re not telling the truth?” And she says “No.” Well he excused
her but I don’t think that it undid the harm that was done. So that was one of
the—
Ms. Upadhyava: I wonder if he realized that he had stepped in that.
Ms. Clark: I think he did. I think he did. So it goes he was also—the judgment that he
exercised in such things as pretrial I was trying to get some stipulations about
something. How much money these people had been required to pay out of
pocket so far to keep their insurance because the company had insisted on
charging them. And this was something that was based on the company’s
records. They could have very easily stipulated this is how much they
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received and he just refused. Because he was convinced that we weren’t
going to be able to prove it. And so he just wanted to put us at the
disadvantage of having to prove how much people had paid. And I said to
him on the phone in one conversation I said, “You’re making a big mistake
here. I’m going to call witnesses and they’re going to come onto the witness
stand and they’re going to give testimony about how much they’re paying for
their insurance.” And he says, “Be my guest.” So we proceeded to put a
parade of witnesses on the witness stand. People that we had to help up into
the jury box. I mean witness box. People who were on walkers. People who
were just you know absolutely the salt of the earth. Who were just like the
jurors and the jurors’ fathers and mothers. And you know one after another
we’d ask, “So how much are you being required to pay for your health
insurance?” And they’d give us a figure and we’d say, “So how much is your
monthly pension check?” And they’d give us a figure which was usually just
a little above what they were paying for their health insurance. And then,
because we had to call these people, we also had been asking them about,
“And what did they tell you when you retired about your health insurance?”
And one after another after another after another they told us that the
company’s chief negotiator, who was also head of the HR department, he had
negotiated—he been at the table negotiating all these contracts. One after
another they told us, “He said to me ‘You have your health insurance for life.
Enjoy.’” And he was dead so he couldn’t come testify. And witness after
witness after witness, very sympathetic people who have been very careful to
tell the truth—you know I would say, “So how many years did you work for
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Dayco?” And they’d say, “32…no 33 years.” So they were being careful.
Very very careful. And they would tell us about Arnold Robinson’s meeting
with them when they retired and how he told them, “congratulations. You’re
going to have your health insurance until you retire. And after you die, if your
spouse is still alive, he or she will still have your insurance.” We reached a
point with those witnesses that the judge said to me, “I think you have enough
evidence on that point. I believe you’re at the point of being cumulative.”
And it was really all because my opponent would not stipulate to the simple
fact of how much money people had been required to pay for their insurance.
So we had some fun moments. And I think maybe you recognize that he made
a few errors. Maybe.
Ms. Upadhyava: So that’s an instance in which a union’s officers and members, have been—
you know were very helpful I assume in helping you develop your record
and develop the facts.
Ms. Clark: Oh absolutely. We couldn’t have done it without them.
Ms. Upadhyava: Have you ever had the inverse issue where you had a more difficult time and
not say one specific or any specific case but how do you deal with a situation
where you don’t have as cooperative of a client or have you ever had any
problems in that regard?
Ms. Clark: I did have one and this is in the…it was a long time ago. It was probably still in
the 1970s. At the time, the federal law laid down by multiple Courts of
Appeals, was that under Title 7, a seniority system could be held to be unlawful
if it had the effect of locking people into their initial job assignments. Where
the initial job assignments were done in discrimination by the company. So if
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you think of a steel mill, which is where these cases were, there are a wide
variety of departments in a steel mill. There’s the blast furnace which was the
hottest and the loudest and the most unpleasant place to work according to
everybody. There was the open hearth where basically the only jobs were the
people running the cranes that lift those huge ladles full of molten steel and
carry them down the long platform and pour them out at the other end. There
were other rolling mills where people are operating machines that are rolling
bars or plates of steel. Those were less hot because the control rooms where
they operated the machinery were enclosed so it was better than being in the
open hearth or blast furnace. Traditionally, and this sort of went back to —there
was a period in the 1960s when a great many African American people migrated
north for jobs in the steel industry. And the employers had overwhelmingly
assigned them to the blast furnaces. And then seniority, the way the seniority
systems worked, your seniority was good in your department so you could
promote up within your department. But if you transferred over to another
department you started over at the bottom. And there was a series of these
Court of Appeals decisions that said because the seniority system, which is not
itself meant to discriminate, is having the effect of locking people into these
discriminatory job assignments, the seniority system violates Title 7. And they
were issuing injunctions that said you can’t enforce your seniority system. The
Supreme Court changed that in I think it was 1977. It was right in the middle of
one of my trials. But that was a bench trial. But until then, what the
Steelworkers had been trying to do was to go into the steel mills and negotiate
changes in the seniority system that would allow people to take their seniority
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with them when they transferred from one job to another. You use it both to bid
on jobs in other departments so that the people who were stuck in the blast
furnace could bid on a job in the rolling mill based on their seniority for the
company and then could promote from within the rolling mill. Well, as you
might expect, that was not very popular with the workers in the rolling mill
because suddenly they’ve got all of these very senior people who were moving
in and taking what they perceived to be their jobs. They’re in line for that
promotion and now somebody comes over from another department. While that
was still going on, that is while the law was still this seniority system itself can
be unlawful because of the company’s discrimination, I was given the
assignment to go in a small steel company —it was called Lukens Steel in
Pennsylvania. At the time it seemed a long way out of Philadelphia but now it’s
just in the Philadelphia suburbs. The plant has long since closed but I was to go
in there and try to negotiate this kind of company seniority system that would
allow people to take their seniority with them and use it in other departments.
And the person—there was a lawsuit pending which is why I was tapped to do
this and not somebody with a lot of collective bargaining experience, but I knew
the law. And so I was sent in along with a, I guess his title was an International
Staff Representative, so he was an employee of the International Union but his
roots were in that local. His name was Earl Zittarelli and his nickname was
“Horsey” because he like to bet on the horses when he wasn’t working. And he
ostensibly was on board with what the International wanted to do. Would never
say a word about not wanting to negotiate this company-wide seniority system.
But he was undermining the effort in any way that he could think of to do it,
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you know. He would raise all kinds of objections that were sort of off point and
he’d drag his feet and we couldn’t schedule meetings and most memorably I’m
sitting with him next to me and I was very young and I mean I wasn’t even 30
I‘m sure. And across the table are a couple of lawyers from the company and
probably somebody from the company’s labor relations department and I’m
making the case for why this absolutely has to be done and here is how we
believe you could do it. Do it the same way as it’s been done at bigger steel
mills by the Steelworkers and so forth. And “Horsey” turned to me and said
something to the effect of “You’re really cute when you get mad.” And so it
was one of those, “Horsey, we need to have a word outside in the hall.”
Ms. Upadhyava: Oh my gosh.
Ms. Clark: As it happened, because the Supreme Court changed the law, we never had to
go forward with that but we did have to defend the lawsuit and so that was the
32 day bench trial that I told you about which came later. And that was the one
that ultimately was argued in the Supreme Court right after my first child was
born, same case. But Horsey Zitterelli was quite a case. And you know I
could complain about him and his superiors could tell him you know you’ve
really got to get with the program here but at the same time he was the one
who knew the local plant. He was the one who had the means of making some
progress possible, and it didn’t happen. I didn’t have many of those problems.
By and large the people in the unions I think lived what they spoke and they
talked about equality. We never—I mean the place where women had the
hardest trouble breaking in has been the construction unions and we’ve never
done a lot of construction industry work. Most of ours were industrial plants
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and that’s been I think a big difference. But I didn’t have very much difficulty
with lack of cooperation from people who were my clients in name or in
reality.
Ms. Upadhyava: One thing that you mentioned that’s. . . I, I think is interesting, uh, it occurred
to me as you were telling the last story that a lot of your cases must have
tracked the sweep of civil rights cases or at least had to have. . .there was some
part of that movement that you must have seen in some sort of way through the
matters, right?
Ms. Clark: Oh you’re right, yeah.
Ms. Upadhyava: Who, who were. . . who were the lawyers bringing these discrimination cases
that. . .um. .
Ms. Clark: A number of the steel industry seniority system cases were brought by the
NAACP legal defense fund. . . very good lawyers. They really knew what
they were doing and, um, the cases that I did in Philadelphia, two long bench
trials, the first one was 85 days and the second one was 32 days, um, and the
first one was the one that the Supreme Court changed the law in the middle
of the case, and said,”You can set aside the seniority system only if you
prove that the seniority system itself was discriminatory, was intended to
discriminate.” Which meant that the second trial then, um, the one involving
Lukens Steel, required witnesses who had been around when the seniority
system had first been negotiated. Which was, at that time, uh, early forties,
so we were litigating in the 19-, early eighties, and the witnesses that the
plaintiffs were bringing in were people who had been part of the original
organization of the union at the plant, so they were bringing in folks that
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were in their eighties and older, and trying to remember what they could
about the conditions at the time that the seniority system was initially
negotiated. That issue we won in the trial court.
Ms. Upadhyava: You were actually able to prove that the seniority system…
Ms. Clark: We were on the other side.
Ms. Upadhyava: Oh you were on a different side.
Ms. Clark: So they had the burden of proof which was of course was very difficult.
Ms. Upadhyava: Okay, yeah.
Ms. Clark: That many years after the fact. There were some, um, some cases involving
sex discrimination that were also brought against, well certainly in some of the
steel mills, um, there were not very many women working in the steel mills in
those days. Trying to remember who counsel were. They were also really
good, coming out of women’s legal defense funds, or affiliated with them
somehow, I don’t know if women’s legal defense fund funded cases fully in
those days but they did have cooperating lawyers, there were some of those.
And, um, trying to remember, uh, those were the two, the sex discrimination
and race discrimination were the two major subject matters at that time. Um,
this was before anybody ever heard of sexual harassment. And the I, I came to
think, in fact when I made the decision to start focusing on employee benefits,
I just, had the illusion that I’d seen all the issues that involved Title 7, there
weren’t going to be any new Title 7 issues and I might as well move on and
learn something new. And different, but I was wrong. I had not seen all the
issues involving Title 7.
Ms. Upadhyava: Well, the law changed in the nineties, right? Or the early nineties, right?
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Ms. Clark: Yes, very much so. Even by the late eighties, it was changing.
Ms. Upadhyava: Were you, did you see a lot about. . .did you have occasion to work on a lot of
those issues, or see, kind of in dealing, negotiating, or counseling the unions,
um, dealing with a lot of the sexual harassment or gender discrimination
cases?
Ms. Clark: Not at the time. I know we did several gender discrimination cases and we had
some pregnancy cases, um, early on when the Supreme Court said no
pregnancy is not, you can discriminate based on pregnancy without
discriminating in violation of title 7. I’m trying to remember there was a, there
was one infamous Supreme Court case which was the reason the Supreme
Court adopted page limits on briefs, that was briefed by a woman lawyer. I
can’t remember her name now. It had something to do with sex
discrimination. But there were, like the Johnson Controls case, are you
familiar with that one? I think it was a case where a company said, “We’re not
gonna have any women who are capable of bearing children in our workplace
because we’re convinced that our, our products are hazardous to the fetus and
so, we’re going to protect all women by just, not allowing anybody who’s of
really an age and not otherwise disabled from having children,” I’m pretty
sure the Supreme Court said, “Can’t do that.” Maybe after the Pregnancy
Discrimination Act was passed, but, but that might be the case or it might be
an earlier one that had a similar kind of sex plus aspect to it, but I do remember
this one case where the woman who we were cooperating with her in some
fashion I guess we may have written an amicus brief for one of our union
clients in favor of getting rid of this sex discriminatory practice, and her brief
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was like a hundred and fifty pages. Huge! It went on and on and on, with the
legislative history or whatever, so, and it wasn’t long after that that the
Supreme Court adopted a page limit for briefs. I want say her name was Ruth.
Not Ruth Bader Ginsburg, but Ruth something-else. I can’t capture it,
accurately now.
Ms. Upadhyava: Uh-huh
Ms. Clark: But there were a lot of such issues, and one of the unions we had represented
for a very long time, the National Education Association. Which is of course,
very heavily female, and the leadership has long been heavily female and
they’re very much against sex discrimination in all of its forms, and so, we
were often prosecuting sex discrimination issues just as likely as we might be
defending them for our industrial unions. There was even one case where our
law firm filed amicus briefs on both sides of the case with the Supreme Court,
and I think the Bar Association later said, “Eh, we don’t think that’s a very
good idea.” You know, we built a, we built a wall, and one team was working
on one brief and another team was working on the other brief and we didn’t
talk to each other; we had absolutely no communication across the wall. But
some of us thought, at the time, “this is a little sketchy.”
Ms. Upadhyava: So, um, I guess I want to be able to, a, were there other matters you want to go
over?
Ms. Clark: Um, no, probably not, I think, uh, I’ve told you enough war stories.
Ms. Upadhyava: Oh no, I. . . they’re fun. I like the war stories, I’m happy to uh, I’m happy to
hear them. I’m curious now what you know, what sorts of matters you work on
now. What still are, what are areas that you still want to work on, that maybe
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you’re not, have gotten and what excites you, what seems to excite you right
now?
Ms. Clark: The thing that I just did a summary judgment motion on is a, is an employee
termination issue that’s in super-secret arbitration. It’s, it’s very frustrating
because it’s a very interesting case, but I can’t talk about it. But um, and we’ll
probably never be able to talk about it, because. . .
Ms. Upadhyava: I was going to suggest. . . a follow up
Ms. Clark: They just never release these things, the client is under a confidentiality
agreement that was part of her employment agreement and, she has to go to
arbitration over the termination issues and it’s super-secret, double-secret
arbitration you might say, yes, total bummer! Um, but, I have done, in the last
several years, so let’s see that would be the first one, the first one was decided
in 2015 so that’s when I argued it, um a series of highly technical ERISA, court
of appeals arguments. For a lawyer in Brooklyn who is a, I’ve read his
transcripts, is a brilliant trial lawyer. He doesn’t feel quite so confident about
appeal work, and he has brought a series of really big cases. The one I did in
2015 was against PricewaterhouseCoopers, a huge class-action and it’s coming,
it has been briefed and there will be an argument in the Second Circuit
someday if the government shutdown ends, which I’ll do again, then there was
one against Foot Locker, for a class that I argued in 2017 and won that one as
well. And. . .
Ms. Upadhyava: Was it in the Second Circuit?
Ms. Clark: Second Circuit, both of those Second Circuit, and a Fourth Circuit that I
argued earlier this year, in March that sadly we lost. There is a cert petition
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pending at this point. That was Pender v. Bank of America. But they’re really,
really technical ERISA issues but all of them with an aspect of the company
misled the employees about their retirement plan, they made a change in the
retirement plan and didn’t really tell the employees what they needed to know
about the new retirement plan. And, and those have been a lot of fun. They’re
very demanding because of the technical issues I’ve got to master like in the
PricewaterhouseCoopers case, I had to master a huge volume of IRS
regulations on the question of retirement age. And in that case,
PricewaterhouseCoopers had come up with this brilliant retirement system
design in which they defined normal retirement age as five years of service.
Ms. Upadhyava: Oh, really? Okay, I, I thought you were gonna say as 50 or 55. . .
Ms. Clark: No, five years of service!
Ms. Upadhyava: I understood the retirement age to be pretty low.
Ms. Clark: It was extremely low and the court of appeals saw through their little ruse, and
said, “whatever that is, it’s not a normal retirement age.”
Ms. Upadhyava: Haha.
Ms. Clark: And so that was a big win. Oddly enough, the two Second Circuit cases, the
PricewaterhouseCoopers case and the Foot Locker case I have had the same
two of the three judges on the panels were the same, Jose Cabranes and Gerald
Lynch, were on both panels, which is just almost unheard of. . .
Ms. Upadhyava: Right
Ms. Clark: . . . in such a short period of time. I’d love to have them again, they were
great. But those were fun.
Ms. Upadhyava: How does having such a short, I don’t know what to call it, a young
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retirement age help the company?
Ms. Clark: Let’s see if I can explain in brief and in non-technical terms. This is what the
company calls a “cash-balance retirement plan,” which is something that was
kind of invented for the first time in the nineties, and it, it kind of mimics a
401k plan, except the balance is only hypothetical, you don’t have any real
assets that belong to you, you have a cash balance which everybody
understands, they might call it nominal, or they might call it. . . there’s some
other word they use, sounds good, but it’s hypothetical, and the IRS
regulations, until 2006 said that when somebody in one of those plans retires
and elects to withdraw their account value in cash, if they’re younger than
normal retirement age, you have to increase their nominal balance by what you
expect that balance will earn all the way to their normal retirement age, and
then you discount it back at a particular rate, which is benchmarked to US
Treasuries. So, since the company was, one of their selling points to the
employees was, “we’re gonna let you earn hypothetical earnings on your
hypothetical balance based on stock market returns or a balance between stock
market and fixed income investment.” They wanted to credit people more than
the Treasury rate. So, if you credit it going forward at a higher rate and then
discount it at a lower rate, you end up paying more than that nominal balance to
the person that’s retiring. They call this the “whip-saw effect.” And
PricewaterhouseCoopers said, brilliantly, “Aha! We can escape having to pay
somebody more than the balance by just defining five years of service as
normal retirement age, and they don’t get vested until they have five years of
service. So, everybody who retires, and is owed anything at all, will have five
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years of service and we don’t have to project anything forward for normal
retirement age.” They say, “problem solved, our normal retirement age is five
years of service.” And the question in that case was whether that was
consistent with these IRS regulations and statute, and the statutory definition
and so forth. All before 2006 when congress amended the law.
Ms. Upadhyava: And did PWC seek cert on that case?
Ms. Clark: They did, and it was denied.
Ms. Upadhyava: Even though there was a. . .
Ms. Clark: There was a conflict in the circuits, because the Seventh Circuit had seen the
same kind of a five-year plot in a different case and they said, “eh, it’s. . .
perfectly fine. You call it normal, it’s normal.” But because, I mean,
obviously as you could expect our, our opposition to certiorari leaned heavily
on the fact that Congress had amended the law and this was no longer a live
issue. So, we’re saying, “yeah there’s conflict in the circuits, but who cares?”
Ms. Upadhyava: So, so the Pender v. Bank of America case, you have, it’s your cert
petition that’s pending?
Ms. Clark: Yes.
Ms. Upadhyava: And what arguments have you made to get the Supreme Court to consider the
case?
Ms. Clark: That’s a tougher one, because the issue there is, whether, let’s see how to put
this, the bank there persuaded employees with more than $3 billion assets in a
401k plan to move those assets into their regular defined benefit plan with the
promise that, “we will let you designate how you want to have it invested, the
same you could in your 401k plan. But we’ll guarantee you that you’ll never
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lose anything, your balance will never be lower than what you transferred in.”
And the reason they were willing to do that is because the bank thought, “okay
people will be conservative like most people are with their retirement money
and they’ll put most of it into fixed income. We, the bank, will go off and
invest the money in the stock market and we’ll pocket the difference.” What
the bank wasn’t counting on was the 2008 financial meltdown, and, um, the
IRS caught them at their little game and said, “You can’t, you can’t just do
that.” In 2009, they made them put the money back in the 401k plan, because
there are rules that say you can’t just take away 401k money and use it for the
benefit of the employer. Which is what they were doing, obviously. They
were gonna make money on the spread. So, the lawyer in Brooklyn sued them
on behalf of the class , in fact I think he had his class action pending when the
IRS told the bank they had to undo this. And, his theory of recovery was, um,
the old equitable rule that if a wrongdoer takes your money and makes a profit
off of it, the wrongdoer has to disgorge that profit to the victim. The IRS
settled with the bank for some specified return on the money, and I couldn’t
tell you what it was, but it wasn’t the full amount of profit that the bank made
on the pooled pension fund while the money was in the pension fund. That
was a net gain of about 37% over the period of time that it was in the pool
fund, it’s more than one year, so that is not an annual return, but it’s like three
years, four years return. So, the Brooklyn lawyer says, “this ancient rule of
equity applied here, because ERISA is equity,” and the Supreme Court in case
after case after case has said to the lower courts, “when the statute says that
the plaintiff can sue for equitable relief, we the Supreme Court are telling you,
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lower courts, that they mean,” and you may find this surprising, “they mean,
the rules of equity as they would have been applied by the federal courts in the
days of the divided bench, 1937, go back to the 1937 restatement of remedies
and those are the remedies that you may have in federal court under ERISA if
you’re suing under this one subsection that says equitable relief.” So the issue
in the Fourth Circuit this year was the following: when the Fourth Circuit had
seen this case once before, before I was brought into it, and the Fourth Circuit
had said, “go back and apply this ancient equitable remedy for disgorgement,
you’ve got to turn over the proportional share of the profits on the pooled
money, because you wrongfully commingled the money. And, the bank came
up with this brilliant accounting strategy in which they said, “Well, we don’t
really have to disgorge the money on what we earned on the whole pool,
because we were separately tracking the investments on the transferred money
and we can tell you to a high degree of certainty that we lost money on those,
and the profit was all made on the rest of the assets.” And the district court
bought that. And we took it to the Fourth Circuit, and we did get one
dissenting judge who said, “The old remedy says, very clearly, if a wrongdoer
commingles the money, they’ve got to pay their proportionate share of the
commingled profits. They don’t get to say, “We can tell you what we didn’t
make on your money.” But two members of the panel said otherwise. So in
this one, we don’t have a conflict in the circuits, and we admitted it, very
quickly. But we said, “Look, you the Supreme Court, have been telling these
courts of appeals, over and over and over and over again, that there is only one
source from which you are to find what is equitable relief under that
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subsection of ERISA, and that source tells you that you’ve got to look at the
commingled whole and you award a proportional share of the profits on the
commingled whole, not letting the defendant come back and say, “Oh but we
kept close track of what this money was doing.” The panel in the Fourth
Circuit said, effectively, “We think that the federal courts have broad
equitable discretion that overrules this old rule, and therefore, the district court
had the discretion to say this is a special case and we’ll let the bank keep the,
the profits on the whole pool.” So, the hope, obviously, is that the Supreme
Court will say, “Yeah, we’ve been telling them over and over and over and
over again that the congress meant go back to 1937 and apply those rules.
There is no broad equitable discretion that overrides those rules.” So that’s
the pending cert petition.
Ms. Upadhyava: And when do you expect to hear?
Ms. Clark: The opp. cert. hasn’t yet been filed. So it will probably be, yet, another
month or two. Depending on whether the Supreme Court is affected by the
shutdown. [The petition was denied.]
Ms. Upadhyava: Is there something about the financial crisis in 2008 that, is there a reason
you’re seeing these particular types of challenges under ERISA, or, or did you
see an uptick in challenges of kind of how companies handle employee
benefits plans or retirement or pension plans after the financial crisis? How did
your practice change if at all during that time?
Ms. Clark: Most of what I saw was the effect on multi-employer pension funds. Those
are collectively bargained, so unions bargain with a lot of different employers
and they all pool their contributions into a central fund and it saves
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administrative costs, and for individual employer’s financial risk is limited. In
a single employer plan, like Bank of America’s plan, the law says, “you the
employer, must make sure that this plan is funded to certain standards under
the statute.” In a multiemployer plan, number one the standards are different
for funding; but number two, the employer’s obligation is not to fund the
whole difference. The employer’s obligation, if it continues in the plan, it
doesn’t have an obligation to pay for any unfunded liability. If it leaves the
plan, after the employees have already gotten vested benefits, then it will have
to pay its proportional share of any underfunding in the plan, according to
some really, really technical rules. But even though the stock market came
back after the recession, the way actuaries calculate what you need to fund a
pension plan, assumes that you’re gonna have steady growth every year. So,
they take a rate and they say, you know, “Based on the last fifty years, 7%
annual compounded return is a reasonable assumption,” and we take that
experience and we just project it forward. So we’ll say, and 7% is kind of a
conservative number; most plans use 7 ¼, or 7 ½. And so, you start with what
the assets were at the beginning of 2008, and you assume those assets are
gonna earn 7% and then next year they’re gonna earn another 7% and this is
compounded on and on and on and on. In 2008, most diversified investment
assets that were diversified investments, lost about 25-30%. So, there, they’ve
just gone into this big hole, and not only are they supposed to be reaching
where they were at the beginning of the year plus 7%, but now even the 7%
that they earn on that money is smaller because it’s being earned on the
smaller pot. And, most multi-employer plans are still struggling from their
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losses from 2008. Because, even though the stock market has gone up. . .
they’re diversified, so they’ve also got fixed income investments, which have
been historically low during this period of time. But they’re also working
really, really hard to make up for those 7% that they didn’t earn and in that, so
in that ten-year period, you would say, now it’s almost eleven years, but, ten
years since the beginning of 2008 the actuaries’ projections would have had
the asset almost doubling, because 7% times 11 years, and it’s compounded, I
don’t know what the exact number is, but you can see that it would have been
something more that 77%, so it’s well up there. And, the stock market, or,
most diversified investment pools have not doubled since the beginning of
2008, so, they’re still struggling, there. And this year is not going to do
anybody any favors, judging from where the stock market is, for December.
Ms. Upadhyava: Do, did you see, that there were- there was a lot of malfeasance or
mishandling of funds, or was just really the victims of circumstance, yeah?
Ms. Clark: Yeah, no. The funds that I represent have top-notch investment consultants
that advise them about how to invest the money, they’re working with
investment managers that are totally on the up and up and completely honest
and capable and they just suffered from the fact that everybody’s assets went
down and then they’ve been struggling to get back. So, so most of them have
been having to take special measures to try to get more money from the
employers, and there’s certain ways that the law allows them to reduce
benefits to participants which is always a very painful thing to do and uh, and
so we’ve been doing a lot of that since 2008. One of the other cases that I
argued in the Fourth Circuit this year was the Bakery and Confectionery
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Pension Fund against Just Born, which is the maker of Peeps. It’s a great
name, because….
Ms. Upadhyava: That is a great…
Ms. Clark: because it’s a family that founded the company, who are the “Borns,” and
somebody came up with the great idea that we’d get these little, fluffy,
newborn chicks and call it “just born.” But they tried to kick back against
one of the rules that the Bakery and Confectionery Pension Fund had
adopted for recovering the funding going back, not only to the 2008
financial crisis, but also in 2012, their largest contributing employer,
Hostess Brands, went bankrupt and shut down basically everything. They
sold a few plants to buyers, but they had been contributing about 24% of the
annual contributions in the Bakery Pension Fund before they shut down.
And, so between those two things, this pension fund has been really
struggling and congress had enacted a new law at the very end of 2014, that
put a new obligation on employers for contributions to help boost the
funding of plans like this one. And, um, Just Born’s lawyers advised them,
“Eh, you don’t have to comply with that, we’re gonna say that the National
Labor Relations Act supersedes that. That congress couldn’t do that.” And
so, we won it in the district court, and the district court quite rightly said,
“Here’s the statute, it’s very clear: National Labor Relations Act was
enacted first,” you know, “and this was enacted second, and we don’t see
any way that you get out of it,” and that’s essentially where the Fourth
Circuit ended up after the argument. The one fun twist there is that the
company came up with this notion that our argument was, the “Hotel
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California” for employers and pension funds because you can check-in, but
you can never leave. And, but. . .
Ms. Upadhyava: Cute.
Ms. Clark: Yes, it was cute. It was cute. But they had the, um, the brilliant idea of
sending in a lawyer to argue the case who is a big name but doesn’t know
anything about pension law. And this was, of course, a very technical
question under one “sub sub sub sub sub sub sub sub” section of ERISA.
And, he had no, he also didn’t know labor law. So, so their argument was that
8(a)(5) of the National Labor Relations Act should override this new statute;
and, early in his argument, one of the judges on the bench said, “Mr. Rifkin,
tell us, what, what is the section of the Labor Relations Act that you’re relying
on?” And he had this, moment of complete panic. He turned around, like deer
in the headlights, to one of his colleagues, behind him at counsel table. Who,
maybe flashed fingers at him or something, but he turned back around and
said, “Section 8.” Well Section 8 is practically the entire National Labor
Relations Act. I mean it’s just full of rules, and this was one subsection,
8(a)(5) that he was relying on. He didn’t even know what, what he was
relying on and it was all over his brief. So, I was left to think he didn’t even
read his brief. Because anybody who had spent any time preparing for that
argument and wasn’t just up there with talking points, would have known that
8(a)(5) was the section that they were relying on. He had two, two arguments.
One was the statute shouldn’t have been interpreted the way the district court
did. The other was that he had defenses that the district court shouldn’t have
dismissed, and the brief was about evenly split between those two issues. I
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don’t know whether the judge was perceiving that he might be able to make
his job easier, by taking advantage of this lawyer who didn’t know what he
was arguing. But he said, “So let’s understand here. So your only issue is the
interpretation of the statute, right?” And he says, “Yes.” Giving away the
other half of his case. So, it really was an object lesson to number one, do
your own preparation. You know, no matter how big a reputation you may
have in the field or any field. Don’t think you can go up there with somebody
else’s notes and argue a case. I would never have thought that there was any
need to tell an experienced lawyer that until I saw that performance. After the
argument, I was waiting for a train at the Richmond train station, and this man
in a suit came up to me and said, “Ms. Clark?” and I said, “Yes, yes?” I didn’t
recognize him, I thought maybe somebody who was in the courtroom. Well it
was. He was, he was a vice president for Just Born, and he had been in the
courtroom. And he said, he was traveling with a couple of his colleagues and
he introduced me to them. And he said, “You really know this pension stuff,
don’t you?” And I said, “Yes. Actually I do. This is, what you might say this
is my bread and butter. I do this all the time.” And, and I’m thinking, “unlike
the lawyer you paid $1,000 an hour, or whatever the going rate is, to come in
here without any clue what he was arguing about.” And obviously, I didn’t
say that, but that was the thought that I had. Well, it just goes to show you
need to know your stuff.
Ms. Upadhyava: No question. And how did the Fourth Circuit that was this year that you won. . .
Ms. Clark: That was this year, yup, we won it. We won it and, um, and after the decision
came down, Just Born threw in the towel and they paid us. So. It was a
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little…they didn’t see any need to litigate further.
Ms. Upadhyava: So, any interesting cases coming down the pike other that the super-secret,
double super- secret case you can’t talk about? And you won’t be able to talk
about, even in a follow up session?
Ms. Clark: Well, there’s the, there’s a second round of the PricewaterhouseCoopers case
with the district court when the court of appeals sent it back down and said
“Five years is not a normal retirement age, district court come up with the
right remedy.” The district court granted a motion that the employer filed,
saying, “There’s no standing.” Which is a problem under the mandate rule,
among other things, because that issue could have been raised in the first
appeal in the Second Circuit. But it’s also just plain wrong under ERISA. So,
so, we’re going back to the Second Circuit with the standing argument, to try
to again, get some relief for the class of PricewaterhouseCoopers participants
who have been waiting a very long time. This, this all happened before 2006,
when the law first was enacted. So, it’s a long time.
Ms. Clark: That’s the one big thing that I have scheduled, other than the arbitration.
Ms. Upadhyava: So one of the issues we were talking about earlier, I had asked you about, you
know how, how work comes into the firm and, and how its allocated and I
wanted to ask you to describe that because I think it’s a really interesting firm
model that I have not seen before, but think that people should hear about.
Ms. Clark: Well, we’re a small firm, as Washington firms go, and we’re part of the labor
movement. So, seniority basically governs everything. It governs
compensation for our associates, it governs compensation for members of the
firm. Our formula for dividing up profits is based on seniority, and so, I as
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the senior person here, have been taking home the largest share of the money
for the last several years until I’m due to retire at the end of 2019, so I’m on a
glide path and my share is now gradually diminishing and moving to the other
folks; which, I’m glad for. But in my mind, what that does is that it
completely eliminates any sense of competition within the firm; so that, for
members, my compensation is in no way dependent on how many clients I’m
credited with being the partner for. The only thing that my being the liaison
partner with a client means is that I have the burden of billing them, and so,
it’s more…I’m happy to pass that along to somebody else as soon as I can.
But there is no withholding client contact from fellow members because of the
fear that somebody will establish a relationship with the client and kind of
take them away. I’ve been very free over all these years to bring my partners
into relationships with clients and, and I encourage them because it- I mean,
well, and here’s an example: one of my colleagues, who also does benefits
work, but probably, I mean he’s certainly done more in representing single
employer benefit plans than I have, I do more multi-employer, um benefit
plans. The United Auto Workers started coming to me in the 19-, eh, that
may be the early 2000s, to mid-2000s with a number of cases that had some
relationship to retiree healthcare issues. And I argued several cases in the
Sixth Circuit for them, did some district court litigation, and then right after
the jury trial that I did in Western Virginia, they came in with a new matter
and I said, “I am just absolutely swamped, let me hand that over to one of my
colleagues.” And they said, “Fine.” So, he then established a relationship with
them and worked on that case until he retired last year. One of my other
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colleagues has gradually, because I was sending them to him to answer kind
of discrete questions, has gradually become their go-to person for all of their
benefit plans for their staff, so they’re in the capacity of the employer of
people who work for the United Auto Workers; they now go to my colleague
with all of those questions. I never even know they’re going on, until, in fact
he’s now doing the billing, which is terrific. So, these are the, and I- it
doesn’t affect my compensation by a single penny, that he’s now the billing
partner, that he’s now the one who is, who is handing out the work to other,
younger lawyers when he needs some help. And, and I can just have a great
big smile on my face that somebody else is helping with that workload. It’s
not, it’s not something that takes away from me. Similarly, with the
associates, you know, they know that their colleagues aren’t going to
somehow get a jump on them by working harder or working longer or making
them look bad, in the converse of that. So I see associates volunteering to
help each other out when they hit crunch times in litigation, because nobody is
looking over their shoulder and thinking they can somehow get ahead by, um,
making somebody else look bad or leaving somebody else to, to struggle and
perhaps, drown in a, in an overwhelming workload.
Ms. Upadhyava: It allows you to put a premium on just focusing on the work.
Ms. Clark: Yes, absolutely. I mean, and that’s, and that’s the objective is, and we all
understand this, the objective is to do the highest quality work for the
client. And whatever that takes is what everybody is expected to help out
with. And, it’s not my client, it’s the firm’s client.
Ms. Upadhyava: That’s a great system.
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Ms. Clark: Yeah. I think it has worked extremely well for us and, and I’m very pleased for
it.
Ms. Upadhyava: So, you mentioned, um, that you’re set on a glide path to retirement at the end
of 2019. Will you actually retire, or, what are your plans?
Ms. Clark: Well, I’ve begun to identify some organizations, non-profit organizations that
provide legal services to low-income people in the employment area that I
would hope I can, one or two days a week volunteer with and help them and
would probably not involve sort of, hands-on client intake or litigation, but
more being a resource for young volunteers who are there to do the clientfacing
work and the actual litigation. That’s my hope. I don’t want to work
five days a week, I would like to dial that back a bit.
Ms. Upadhyava: Are there plans beyond work that you are looking forward to?
Ms. Clark: Well that all depends on whether my husband can be persuaded to reduce his
schedule at all, which is unclear, he loves what he’s doing and he says, “I want
to do it as long as I can,” so, that’s, that’s a matter of some discussion and
negotiation as you might imagine.
Ms. Upadhyava: Ah, sure. Well, I mean, I guess you could travel through Europe by
yourself, but it wouldn’t be as much fun.
Ms. Clark: It wouldn’t nearly be as much fun, no, nope I would rather have a companion.
Ms. Upadhyava: Well, this has been fantastic, I don’t know if there was more that you
wanted to add.
Ms. Clark: No, I can’t think of anything else, it’s been, yeah it has been a lot of fun.
Ms. Upadhyava: It’s been a real pleasure for me and I’ve, I know that the Historical
Society really appreciates it, I’ve been keeping them apprised and it’s,
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it’s really been a treat.
Ms. Clark: Good!
Ms. Upadhyava: So, thank you so much for your time.
Ms. Clark: Oh, well, thank you for your time and effort.