>> we will try it after the program. >> and so, coming up is "closing bell" for us, and what is coming up "fast money? >> thank you, kelly. ellen powell says that the former employer kleiner perkins did not promote her because of her gender, and we have a verdict coming out any minute, and we have scott there in silicon valley following it, and what are you seeing, scott? >> well, the jury is coming into the courtroom, and let me lay the scene. we have the verdict form as we v have been saying is seven pages long, and what happens at first blush may not be what ultimately happens in the trial. this is an example. the first question that the jury is asked to answer is was ms. pao's gender a substantial motivation for kleiner perkins

not to promote her for at kleiner perkins, and was that the case? not necessarily, but if they say they could have found later on that it did not matter and she would not have been promoted, then the firm is exonerated, but even still, the firm is not off of the hook, because then did the firm retaliate against her when she raised claims of sexism, and then they have to determine how much she lost in past earnings, and future earnings, and if she can go on the collect future earnings, and we will see what happened, because we are waiting for the jur ri to arrive in the courtroom. they have had the case for 48 hours almost exactly, because they got it in the middle of the day pacific time wednesday, and came back with the verdict at lunchtime today. had asked a lot of questions about the issue of retaliation, and the performance reviews that the ellen p.o.w. was given, and

she claimed that they were trumped up, and meant to retaliate, and that she had been fined. the company says that she was a poor performer, and not cut out to, not cut out to do this job of venture capitalism. and we are told that the courtroom has gone dead silent, and the jury is coming in now, and we will have the verdict for you momentarily, and we are keeping an eye on all manner of communications here, and we will keep you posted as it comes. >> so scott, as we await the verdict, is six men and women on the jury and they heard four weeks of testimony, and what are some of the highlights that would lead to the e decision? >> well, you are right. they heard four weeks of testimony, and some of it was on the salacious side. talked about a private plane ride in which supposedly according to ellen pao, they were talking about porn stars and things like that, and there was a book that was given to her

by randy commisar that was suggestive and a book of poems by leonard cohen called "the art of longing" or the name is wrong, but it has erotic images in it, but he testified that it was innocent, and they had a common interest in buddhism, and this is what the book is all about, and so there's a whole lot of it as we have been saying, he said/she said in the case. the judge, and let me just the judge is saying that everyone needs to be quiet, and respectful, and admonish iing t jury and the courtroom which has been packed throughout the culmination of the trial, and so searching for some decorum there as we await for the verdict to be read. >> thank you, scott. in the meantime, we will bring in the cnbc's correspondent, julia boorstin, and this is one that is captivating silicon valley, and the papa rrazzi is

what they are calling the venture capitalist, and the venture world as it is called. >> yes, absolutely. it is bringing a lot of gender imbalance in silicon valley, and looking at twitter, and facebook, and google, and those are 70% female and 30% male, and when you look at venture capitalists, it is very small, and it is about 6% women hold the top investment investment roles in silicon valley v.c. firms, and so it is brought to debate more women and more je gender equality, and a lot of conversations of how to do that? >> what have you heard, julia, in terms of which side should be favor ed ed in the valley? is there a general consensus? >> what is fascinating is that i

have been talking to people across silicon valley, and the start-u start-ups, and the other companies, and people don't know what is going to happen in the verdict, and nobody has said that the ellen pao is going to win it or a lock for the company. people were confused by a lot of the information that came out in the case, and certainly people thought that ellen pao did not come across looking great and neither did kiner perkins, and it is a situation that folks that i talked to could not guess or predict what the verdict would be. >> we will go to scott cohn for that. >> on the first question, was gender a substantial motivating factor for kiner perkins to not promote ellen pao, and the answer is no, and they did not discriminate on that point, but i will reiterate they could find that jegender is substantial

motivating factor in other ways including retaliation. >> and scott cohn saying no. and let's bring in the senior fortune editor on the line, and he is covering the case. daniel, are you surprised to hear this? >> yes, and as had been said earlier, it is a toss-up, and nobody said that it is a def definitive thing, but some the questions that the jurors have been asking for the last couple of days, it has led a lot of us on the outside to lean toward her, but some of the thers things could lead to the accusations, but right now, i'm fairly surprise. >> you wrote sharply about some of the testimony by both her, and system of the investors and the senior partners at kleiner perkins, and who is the key witness that would sway this jury? >> ultimately, and we are waiting for the final verdicts on this, buttall lellen, hersele

is the most important person, and did they believe her or not believe her. so many people testified from kleiner perkins, buttallen testified on her own behalf, and the people who had the first-hand knowledge, and there were some people who agreed with what ellen said, and disagreed with other thing, and this boils down to what if they believe ellen said, and in watching her that she would make a god partner, apar -- would make a good partner, and did they believe that she would make a good team partner or not, and that is what kleiner was arguing that she wasn't. >> and more news on the charges. scott, do you have something for us? >> oh, yes. on the question of whether we have said that gender was not a substantial motivating factor, on was gender a substantial motivating factor for her being

fired, no. moving on, and forgive me, because it is a windy day here, and i'm trying to switch the pages here. also, sorry, i am going to go back to you, sarah, while i sort it out. >> and work through it. we have julia boorstin here, and julia, the reaction here, and the california jury saying that genderr was not a substantial reason that kleiner perkins fired ellen pao, and waiting for other charges, but your reaction here? >> i think it is interesting, and look, i think it is too soon to say what the full verdict is here, but the question is as dan primack said, was she a good partner or not being a good partner or fired for the gender reasons, and she did not present a good case in the first two issues. she did not convince the skwur ri that she should have been

promoted. there are not many women in the most senior roles, but it is a partnership, and there does have to be a sense of the congeniality between the pa partners, and i'm curious to see what the rest of the verdicts are on behalf of the jury, because it is going to be an interesting case. i do believe it is going to with be setting precedent, because in the past week there were similar gender discrimination cases filed against twitter and facebook, and it could give us a sense of where they would go. >> yes, a reverberating effect. scott, more news from you. go ahead. >> sorry. they have also appeared to have found that it was not done in retaliation, and again, that is a key element. so thus far, it is a victory for kleiner perkins, but we are not done yet. >> and there we have, gender was not a substantial reason that kleiner perkins failed to promote ellen pao, and no also on the retaliation. i want to bring in from san fran attorney kay lucas who has been

following the case closely, and you are an employer out there in the valley, and you were this the courtroom, were you not? >> yes, i sp spent a lot of time in the courtroom, and it has been a fascinating case, and it has all of the elements of many cases, and some of the most glamorous elements, because it involves one of the most power ful industries in the bay area. we were going to not only to look at the gender issues, and how this was going to happen, but as practitioners, and how does the venture capitalism work, and make decisions, so we were all very interested and the courtroom is often filled with lawyers, and we were interested in how these who were top people, and top lawyer, and it was one of the best cases that i have ever seen that was presented to the jury. it was seamless. >> yes. >> and all of the, all of the

lawyers with were just top rate. >> i think that you wrote or were quoted somewhere as saying that you thought that it would go in her way, but so far it is n not. >> i know, that is what it is sounding like. and the jury had a seven-page verdict form. it has a lot of questions, so i am eager to hear the rest of the verdict, but it does sound like, if you are -- i'm not sure that they have gotten to the retaliation piece, because that is at the end of the verdict form. i am not in the courtroom. >> dan, if you are with us, because i know that you wrote a lot about this, and if this came down to the jury deciding whether or not she was a good investor, and good capital investor, worthy of promotion je gender or not? is that at work here? >> yes, that is part of it, and before you can decide whether she was discriminated against,

and it was the gender to be promoted, first you have to determine if she was to be promoted and obviously there were other men and women who were not promoted, and so it is a woman who was on before me said that it is going to be interesting to see what the jury does say, and how they explain the findings on this. >> yeah, and i want to bring in another voice into the conversation, "the new york times'" columnist, and contributor nick billiton on the fast line with us, and if you are just joining us, the california jury here in silicon valley saying that gender was not the substantial reason that kleiner perkins did not promote ellen pao. are you surprised by that? >> yes, i am surprised by that. i have been on the outside to find what the jury is going to do, and it is a jury of the peers of 12 people, and it is kind of a shocking result.

if you have read the coverage over the past week in silicon valley, there is a lot of people who will be shocked by this, in the working in the valley, and working in san francisco and have any knowledge of this case is all. >> julia, i cannot imagine that it does not create some change for women in the workplace, and especially for women in technology in silicon valley, and venture capital. >> well, look, it is a loss for ellen pao, and a win for kleiner perkins here, but it did reveal a number of problems here, and kleiner perkins did not come off looking great throughout this, and i talked to many people who were optimistic that the dialogue that it was creating even if she loses, and as she has would be a positive thing for women, and one thing that is pointed out is that there are so few women in the venture capital as well in general, and to to y today, dade rise on the female-only firms, but i don't think that this is a chilling effect on the hiring of women.

i certainly hope it is not going to be a chill iing effect on th hiring of women in the funds, but we will see what happens in the suits that are filed, and if it is a diminishing effect. >> scott, you have news for us? >> well, sarah, this has been coming n and it is a resounding victory for klieiner perkins. there were pitfalls a and also some chances for them to be exonerated if they found discrimination, and retaliation, but she would not have been promoted or lost her job anyway. this is a case expertly tried on both sides, but with the verdict in, no, she was not discriminated against or retaliated against, and no, the firm did not fail to take steps to prevent discrimination, and

indeed, the firm has won, but as you have been talking about, this is potentially opening the floodgates, if you will, for more claims, and there have been other suits by women in silicon vall valley, and definitely consciousness about that issue, and everybody, including the firm by the way, feels it is a positive thing. and kleiner perkins has been portraying itself as a leader in this area, and has minority of women in the key roles of the company, and mainly the women in silicon valley, but just the same, there is improvement that needs to be made. they did not feel that ellen pao was the right person to represent those. she was an employee who had issues getting along with people, and in a unfortunate

turn of a phrase she didn't have the genetic makeup to begin the analysis of investment capital, and the pao team said that it was a moment of clairity, but te company said that it was simply shorthand for this woman was not cut out for this role. >> and clearly the jury did not see it from her eyes. i want to bring in dan from this point, because dan, over at "fortune" you have written about kleiner perkins, and you have reported before she filed the char charges that ellen pao would be fired from kleiner perkins, and now how is this going to be affecting the firm -- >> well, i reported that she would be leaving and not fired. but the reputation has been extraordinarily damaged in this, and candidly, it was surprising that they could not reach a settlement, and in the retrospect, it would have worked out better for both sides, ellen

would have gotten some money, and kleiner would have not take zone much in damages. this is an age when the entrepreneu entrepreneurs have choices of capital firms, and this is not going to help them when the entrepreneur is flipping a coin of two firms to pick. >> and nick, this is a key issue that so many people latched on to, and obviously, sexism in the workplace, and technology, and otherwise, and what do you believe is going to be the big impact of this decision? >> well, i think that if you look, julia, said it earlier in the last couple of weeks, we have seen a couple of suits filed against the technology companies, twitter, facebook, and kleiner, and one thing that i have found fascinating is that the midas forbes book came out this week, and it is majority of men. a change has to take place at some point, and granted that the jury found this no for the

answer, but when you look forward the more it happens eventually, somebody is going to the be coming back, and show that they are discriminated, and it is going to have a change, and sorely needed in the valley, and male dominated place, and the cos and everyone from the top down, and you know, it is all male dominated and one thing they found fascinating recently is that i was going through a tour of the company, and one of the male employees joked around at one of the female programmers is what they called a unicorn because she is so rare. this is the language and the culture that has persisted there, and it has to change at some point, and i think that the small steps are going to be getting there eventually. >> and i don't know how much of a step it was, and scott cohn, how much does this verdict mean for kleiner and, scott, what do

you feel is the impact of the case? >> well, there is a free market with the lawsuits and the courts, and some may decide if it did not work for ellen pao, a suit filed three years ago at great cost, and effort at all sides, if it did not succeed, will others continue the efforts. chances are they will, and she may as the company claimed, may not have been the best representative of the issue, but it does not mean that the discrimination does not take place in silicon valley or elsewhere in the business world. >> and how do you see it, because you are an employment lawyer in california, and do you feel it is a setback for the women in the employment environment? >> well, i do believe it is a setback, but it is a watershed case, and it spotlighted the issue

issues. i want to make one distinction that kleiner is a partnership, and with corporations there are many policies in place, and so you have to distish between the venture capital firms like kleiner perkin cans, and companies where there are set procedures, and it is statistically easier to see what is happening to the women in the workplace, and because of the discretionary leeway, you have to look at that for the partners, but to me, there is no question of the silicon valley, that it is the second generation of women, and in the first generation, some of them broke through, and start their own things, but the next generation is entitled to go up, and we are seeing a fair amount in the office. >> and nick belton, and if you are joining us for the audience, the jury has found -- >> wait, we have a change, folks. we have a big change. sarah -- >> go ahead. >> there are -- okay.

they have polled the jury which they were going to do just to double-check this. nine votes were required for this verdict. the jury came back, and the poll of the individual jurors, the poll came back 8-4. 8-4 that they didn't discrimina discriminate, and that is not enough, and so according to the producer s s in the courtroom, judge has told them to go back to resume the deliberation, and so this is not over yet, and the deliberations will continue, because they have to the reach nine votes on every question. >> they have to have a majority, and this is eight, and they have to go back. >> and so what it means is that the jury is hung here, because there is a rule of four, and four people can block a verdict. so we will have to see if one of the four changes their mind. >> and nick n is going to speak to -- go ahead. >> and the instruction was, and you are the attorney, so you can help us out here, and the instruction is that nine votes

on any question were required to decide the question. and perhaps they didn't get that instruction or understand that the instruction when they came back with what they thought was a verdict. >> and okay. what happens next? >> but again, we have 8-4, and instead of 9-3 which is what is required. >> they have to go back to the jury room and see if one of the four people will change their mind, if they can reach a verdict. if everyone hangs tight where they are, it is a hung jury, and calls for the new trial, but most often those cases will be settled when there is a hung jury. >> and nick, with this new development, it seems to the fact that it was so complicated and so much testimony to go over, and there was not really a clear-cut case here one way or another. >> yeah, it is fascinating, and i have been following along and watch

watching on twitter, and what is going on? we have this verdict, and then the next minute another one, and this is the example that the majority didn't know, and then how are we supposed to know what is going on, too? i agree with what someone said e earlier that it may end up being a settlement here if the jury cannot go into the conclusion, because it can't go back. what i am seeing, because i am not there at the trial, but it is the women who are saying that they didn't vote no, and so we will have to see what the reaction is to that. >> and let me just clarify something, the same nine jurors do not have to agree on each of the questions. so each question has to have nine jurors to answer the question yes or no. but it can be different jur jurjurors on each question. and do we know the makeup --

>> it is six men and six women. and one other complication here, and the reason that we got the notice that we did that there would be a notice is that the alternates have been in the cou courtroom to hear it, and so they know the vote, and so now, there is a big huddle in the courtroom about what to do. i suppose, and i don't know the answer to this, but it could throw it up in the air, and could lead to a mistrial, but you have alternate jurors who havet is sat through four weeks of testimony, and now the suggestion that they are tainted in some way. this is a wild state of affairs. >> but they are not sitting on the jury, and so what happens is that the four alternates will be dismissed and never be be able to sit on the jury if one of them are sick and not able to continue. and what we have done in the

past is to stipulate to 11 jurors, and then you have to have 9 of 11. it is not common, but frequently, you will have to deal with the situation where you have less than 12 jurors for one reason or another. >> and dan, it is a complicated sort of hard to determine verdict here in what is always a complicated and ambiguous case. >> and i will say that i am not sure 100 p% that the two sides would not want to settle. i can see that ellen would want to settle, and kleiner perkins has a lot of money and able to spend a lot of money, and that is not an obstacle for them for another trial, but it may be the per sp perspective here that it is full vindication, and i'm not sure that kleiner wouldn't have the appetite to go through it again

to get the full vindication. >> we will work it out, and obvio obviously, you are still with us, but it is opening the dialog dialogue, but the question is will it be moved forward in silicon valley? it is interesting to learn that one of wall street's most prestigious women executives morgan stanley's cfo is going to goog google. >> it is going to be so interesting to see what is happening next, and there are women in silicon valley trying to make changes, and mark an dree sen launched a boot camp to have the background they need to sit on the boards. and she is probably the most popular in the silicon valley, and it is going to be something that we don't see as many prominent women as we have here with marian meeker, and so it is going to be interesting to see what we have with the lawsuits, but the can of worms is opened,

and i hope it does not have a chilling effect on the hiring of women. >> nick, i'm can curious about your views of sexism in silicon valley, and the wins of ruth porlat going to make $70 million at google. >> yes, there are changes, but it is happening too slowly. the only women that we could identify were the typical ones, marisa maier, and the different folks of facebook, and i think that the process happened too slowly, and maybe it is going to speed it up. one thing that happened is that a lot of women who were not executives, but founders of companies that have gone off like twitter will go on with the tech related thing, and we have

a woman who started a collective called angel, and so now they will start to enter new startups, and a couple of years of that startups, they will have that as the beginning start of the company, and that is when you will see the change happening at a much, much quicker pace than we have now. >> scott, the headline n of the screen, the judge is telling the jury to resume the deliberations. do we know anything how much longer it will take and when we will get some information here? >> we do not know. we don't know which particular questions it was, and it is the issue of the retaliation that they have not reached the requisite nine vote, and it does appear, and we will try to re-ask this. it seems they agreed on the retaliation, and it leads to damages for the firm, and we are

trying to the nail it down, but nonetheless, the jury is back in the jury room deliberating, and like any deliberation, we have no idea of knowing how to know how long it will take. >> and joining us, is c ashgts ra, and what is your determination, not knowing the final determination, because we have a jury. but it is siding on the side of kiner perkins. >> and you are doing a live blog right now, and several people were voting for the retaliation claims, which they have to sort that out, and applying the lawsuit itself, but they have certainly won on the gender discrimination counts that the jury was inclined towards kiner perkins. >> did that surprise you? >> nothing surprises me when it comes to the gender issue. they thought that she was fired for other reasons, which kleiner perkins tried to stress that she

was inkcompetent, and the same s other people. they made the case that it was not that she was a woman, but that she did not perform, according to the restrictions that they had. and it was not a reflection of kiner perkin cans, but it shoedd the strange workplace which was not great for them in particular. and shining the light on a big issue, and no matter what happens here, it is going to make people incredibly aware of the people with the genters and a bunch of innovation happening around the globe. >> yes, and we are talking about the broader impact, of how we look at discrimination in the workplace, especially in silicon vall valley. >> well, there are some cases that you don't win right