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Ellen Pao v. Kleiner Perkins Closing Arguments: Made the Money v. Wants the Money

"The writing was on the wall. Even a fool could see that, and Ellen Pao was no fool."

Vicki Behringer

The inside of a double-wide courtroom in San Francisco was sweltering and packed on the first day of closing arguments in Ellen Pao’s historic gender discrimination lawsuit against Kleiner Perkins Caufield & Byers, her former employer.

Parents had taken their children out of school to see it, former Yahoo president Sue Decker among them. Packs of local and national reporters jammed around power strips in the back. Curious onlookers dragged extra plastic chairs into the room, and others perched in crowded rows along shelves and banisters.

Kleiner Perkins, once one of the most famous and powerful venture capital firms, has been dragged through the mud in a month-long courtroom thrashing. While it often seems to be faring well in its arguments, the historic firm’s name is likely forever tarnished, tainted with images like a partner in his bathrobe pushing into a female colleague’s hotel room and an apparent pattern of promoting young men even as the firm’s women outperformed them. But here, performance has little to do with promotion and pay: Kleiner Perkins’ defense lawyer said considering an IPO or exit as the only factor in promotion “would be crazy” — the ability to fit into “team KP” and provide “thought leadership” mattered more.

Pao now bears a new burden as well — by speaking up and throwing her name and reputation into this suit, she’s become one of the only women in venture capital to publicly stand against the billionaire kingmakers of the startup world. And today was another slog through her former colleagues’ testimonies attacking her character and moral compass, again casting her as a litigious, scheming woman who slept with a co-worker and then wanted cash.

After long and roving arguments over the past month, today both sides pared down their final pitch. Pao’s lawyer Alan Exelrod focused on the bottom line: Money Pao had earned for the firm. Defense attorney Lynne Hermle focused on Pao’s difficult personality, painting her as toxic in the office.

As always on big days, our liveblog covered the blow-by-blow from today. Below, a synopsis.

Exelrod Focuses on Performance, Calls the Rest Distraction

In closing statements, Pao’s lawyer Exelrod tried to end the conversation not on salacious details like all-male dinner parties but on a more basic fact: Pao was a qualified investor whose contributions were valued and whose investments did very well.

His first sentences: “We are all here today because Kleiner Perkins broke the law. Kleiner Perkins, however powerful and successful, cannot be above the law. It must adhere to the same standards as all employers — that requires the same standards for promotion be applied to men and to women and that requires the same standards with regard to retaliation.”

He said that she made more for the firm than the men who were promoted.

“Ellen Pao was a hardworking, incredibly thoughtful, productive employee for Kleiner Perkins. She generated more revenue for Kleiner Perkins than any of the men who were promoted in 2012. As of [the] decision to promote in 2012, Ellen Pao drove the returns. The men received the promotions.”

To win a civil case, Exelrod noted, Pao just has to prove that there was even very slight discrimination (not beyond-a-reasonable-doubt proof, as in a criminal case).

“One way you can think about this burden of proof is to think about the scales of justice. What is the obligation of the plaintiff? It is to tip it slightly,” Exelrod said. “And the tip can be so slightly as a feather, something small can do it.”

He called Hermle’s focus on Pao’s interpersonal conflicts “a distraction.” The performance reviews were “fraudulent.” He brought up Ted Schlein’s remarks in his testimony that Pao didn’t have “the genetic makeup” to be a venture capitalist. He asked how Kleiner Perkins could have a full-time PR person and not an HR representative.

And over and over Exelrod talked about Kleiner Perkins as “a boys’ club” that lacked a “level playing field” and that women, even those in investing roles, were kept out of leadership.

“Who were the managing members of all these funds?” he asked. “Until Beth Seidenberg in 2015, after Ms. Pao had complained, there had not been one single woman who was a managing member of any of the funds except in China.”

Before the lunch break, he ended on a collage of firm headshots: “This is the class of the boys’ club.”

According to Pao’s expert witness’s estimate, she stood to make $14.5 million in compensation if she had been promoted at Kleiner Perkins and stayed 10 more years at the firm.

Exelrod added an activist flourish to his typically academic tone: “Kleiner Perkins broke the law when they retaliated against somebody for protesting discrimination. The law is meant to protect people who stand up. In Kleiner Perkins’ culture, when you stand up, you get slammed down.”

In firing Pao, he said Kleiner Perkins was “looking to create and continue that boys’ club — that boys’ club that had been there from the start.”

Hermle Focuses on Narrative of Negative, Selfish Pao

Hermle honed in on her argument that Pao received ample support and mentorship at Kleiner Perkins but failed because of her nasty, selfish personality: “These complaints are simply a continuation of Ellen Pao’s attempts to blame others for her own failures,” said Hermle, as opener.

Hermle kicked off her arguments with sarcasm.

Beth Seidenberg and Mary Meeker said they weren’t discriminated against, “but Ellen Pao knows better,” Hermle said in a sing-songy voice.

Pao’s attorney said Meeker was only promoted after Pao filed her lawsuit.

“Mary Meeker denied that in her testimony. But Ellen Pao knows better,” Hermle said, to the same tune, repeating it a few more times in other scenarios.

When Pao started getting bad performance reviews, she didn’t go to Meeker or other women for advice. She just wanted to be paid off, Hermle said. (De Baubigny did testify that Pao would ask her out to coffee for advice, conversations de Baubigny later recounted on the stand.)

“As sometimes happens when a clever employee sees the writing on the wall, Ellen Pao went on the offense,” Hermle said.

And as for this notion that Pao is suing for women’s rights, this was nowhere near her original intent, Hermle said.

“Her complaints in January 2012 were never designed to help other women,” Hermle said. “If they had been, they would have looked very different.”

Not only did Pao have extra support from John Doerr, she refused to change when her performance reviews turned negative, Hermle said, probably because her fancy education made her full of herself.

“Maybe because of her record of academic achievements, she was already a success in her own mind and didn’t need to fix anything,” she said.

Hermle cued up a slide entitled, “Pao’s Numerous Conflicts: What Is The Common Denominator?” Pao’s headshot was in the center with various cartoon figures around it to represent partners Pao had exchanged testy emails with over her years at the firm.

“As happens in a small workplace, this corrosive pattern of attack alienated her coworkers and led to tension and distrust,” Hermle said.

Her eyes were only on money, Hermle argued.

“She wrote to her friend Lori Park, ‘I need to stay at KP until Nov when my carry in fund 14 vests,'” Hermle said, cuing up the email.

This lawsuit comes because Pao knew she was going to be terminated at Kleiner Perkins and she couldn’t get another job, Hermle said. According to Hermle, Pao has never been on “Team Kleiner Perkins,” she’s always been on “Team Ellen,” and her assertions that other female partners were promoted after her lawsuit is only her latest brazen attempt to claim credit for other people’s accomplishments.

About that level playing field? Hermle said: “Because of John Doerr’s mentorship and support, Ellen Pao started on that playing field with points already on the board.”

“The writing was on the wall,” Hermle said. “Even a fool could see that, and Ellen Pao was no fool.”

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