Professional Documents
Culture Documents
Memo of Law
Memo of Law
No.
Petitioner
ECF Case
GRETCHEN CARLSON,
Respondent.
W. Garland
Ronald M. Green
David W. Garland
Barry Asen
250 Park Avenue
New York, New York 10177
Telephone: (2t2) 351 -4500
lsl
Attorneys
FIRM:37652788v1
for Petitioner
Roger Ailes
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES
.,.,..
PRELIMINARY STATEMENT
ARGUMENT
THIS COURT SHOULD COMPEL ARBITRATION IN ACCORDANCE WITH
MS. CARLSON'S EMPLOYMENT AGREEMENT AND SHOULD STAY ALL
FURTHER JUDICIAL PROCEEDINGS.........
A.
B.
CONCLUSION.
FIRM:37652788v1
TABLE OF AUTHORITIES
Page
A.
CASES
AT&T Techs., Inc. v. Commc'ns \4/orkers of America, 475 U.S. 643 (1986)
,4
Bleumer v. Parlo,vay Ins. Co,,277 N.J. Super. 378 (Law Div. 1994)
.5
Campaniello Imports Ltd. v. Saporiti ltalia S.p.A.,1 17 F. 3d 655 (2d Cir. 1997)
,4
Hirschfield Productions, Inc. v. Mirvish,2IS A.D.2d 567 (1st Dep't 1995), aff'd,
88 N.Y.2d 10s4 (1996)
Pritzker v. Meruill Lynch, Pierce Fenner & Smith,lnc'7 F'3d 1110 (3d Cir. 1993)
.4,5
Tracinda Corp, v. DailmerChrysler AG, 502 F '3d 212 (3d Cir' 2007)
B.
STATUTES
New York City Human Rights Law, N.Y.C' Adm. Code $ 8-107
ll
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PRELIMINARY STATBMENT
In June 2013,Iespondent Gretchen Carlson, a well-known cable television news
anchor
employed by the Fox News Network, LLC ("Fox News") in Manhattan, entered into a multi-million
dollar, three-year employment agreement (the "Agreement") with Fox News that contained
an
Ignoring the Agreement's binding arbitration provision, Ms. Carlson last week filed
Complaint in New .Iersey Superior Court, Bergen County, asserting claims arising out of and relating
to her employment at Fox News. The Complaint alleges that during her employment, Petitioner
Roger Ailes, Fox News' Chairman and Chief Executive Officer, sexually harassed her, discriminated
against her, and retaliated against her by not renewing her Agreement, purportedly because she had
rebuffed his alleged advances and complained. The Complaint pleads only an alleged violation of
the New York City Human Rights Law, N.Y.C. Adm. Code $ 8-107 (not New Jersey
law).
(The
Ms. Carlson not only improperly filed her public Complaint in the New Jersey Superior
Court, as opposed to filing
obligation so that she, her counsel, and their public relations firm (aptly-named Ripp Media) could
vilify Mr. Ailes publicly, try this case in the newspapers, on-line and on television,
I The Cornplaint was removed from New Jersey Superior Court to the District Court for the District of New
Jersey based on diversity of citizenship. (See Petition lf 12)
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to settle. Ms. Carlson's counsel has been on a non-stop tour of major media outlets ever
since,
making one non-privileged statement after another: articles quoting the Complaint and/or Ms'
Carlson or her counsel's outrageous comments have appeared
in
Street Journal, The Washington Post, The New York Daily News, People Magazine, Politico, Daily
Beast, The Holtywood Reporter, New York Magazine, among others. Moreover, as further evidence
intentional violation
of the Agreement's
conf,tdentiality
provision, they did not reach out to Mr. Ailes before filing the Complaint in the Superior Courl.
Instead, they struck without warning and blasted their salacious allegations to the media immediately
upon hling.
In
a transparent attempt
Ms. Carlson named only Mr. Ailes as a defendant in her Superior Court action, rather than naming
Fox News as
Complaint by his corporate title, 'othe Chairman and CEO of Fox News." (See Petition Ex. B at fl 3).
to ignore her
contractual obligations,
file
in
Superior Court, and publicly engage in a smear campaign against Mr. Ailes. Her lead counsel, an
experienced New Jersey plaintiff-side employment lawyer, knows better. As addressecl below, both
Second Circuit and Third Circuit law squarely hold that an employee cannot avoid a binding
arbitration agreement with her employer by merely naming her employer's cotporate officer (such
as
For these reasons and those that follow, Petitioner Ailes respectfully requests that this Court
compel the arbitration of Ms. Carlson's claims at the AAA in Manhattan pursuant to the explicit
terms of the Agreement and stay all further proceedings in this Court.2
Mr. Ailes's motion to compel arbitration filed in the U.S. District Courl for tlie District of New Jersey
bee withdrawn. Ms. Carlson had not responded to the motion at the tirne that it was withdrawn.
2
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has
ARGUMENT
ACCORDANCE
.IUDICIAL PROCEEDINGS.
A.
and enforceable
v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 24-25 (1991); see Circuit City Stores, Inc. v, Adams,
s32 U.S. 105, 109 (2001).
The FAA, $ 4, provides that a "party aggrieved by the alleged failure, neglect or refusal of
another to arbitrate under a written agreement for arbitration may petition any United States district
court, which save for such agreement, would have jurisdiction . . . for an order directing that such
arbitration proceed
in the
manner provided
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, lnc.,473 U.S. 614, 619 n'3 (1985)'
The FAA further provides that when a party files a judicial complaint in violation of an
agreement to arbitrate, a federal district court shall stay all judicial proceedings and direct the parties
4;
Tlre Supreme Court has long instructed tha" arbitration is strongly favored as a matter of
policy and that any ambiguities in the scope of an arbitration clause should be resolved in favor of
arbitration. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,460 U.S. 1,24-25 (1983)'
o'unless
Thus, a court must compel arbitration
it
J
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arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT&T
Techs., Inc. v. Commc'ns Lkorkers of Amer,, 475
B.
U'S' 643,650(1986).
claim or dispte arising out of or relating to this Agreement or Performer's [Ms. Carlson's]
employment shall be brought before a mutually selected three-member arbitration panel and held in
New York City in accordance with the American Arbitration Association then in effect." The
language of the Agreement could not be clearer: the Complaint, which on its face involves claims
arising out of and relating to Ms. Carlson's employment at Fox News, belongs at the AAA.
Courts uniformly reject Ms, Carlson's transparent tactical strategy of attempting to evade her
arbitration agreement by arguing that only the employer, and not the employer's executive, signed
the Agreement, and therefore the provision purported does not apply. For example, in Roby v. Corp.
of Lloyd's, where the plaintiffs argued that the arbitration agreement was not enforceable because
defendants' chairpersons were not parties
to it, the
instructed:
Courls in this and other circuits consistently have held that employees or
disclosed agents of an entity that is a party to an arbitration agreement are
protected by that agreement. We believe that this [naming of the
Chairsl is a distinction without a tegal difference. If it were
otherwise, it would be too easy to circumvent the agreements by naming
individuals as defendants instead of the entity Agents themselves.
Roby,996F.2d 1353, 1360 (2d Cir. 1993) (emphasis added); see also Campaniello Imports Ltd'
v.
saporiti ltalia s.p.A.,l 17 F. 3d 655, 668-69 (2d Cir. 1997); Marcus v. Frome,275 F. Supp. 2d 496,
4
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504-05 (S.D.N.Y. 2003).3 Naming Chairman and CEO Ailes as a defendant, and not Fox News, is
precisely such a "distinction without a difference."
view. It
Pierce Fenner
decision to compel arbitration). More recently, the Third Circuit reaffirmed its holding in Pritzker,
as the
Appellate Division, First Department explained and the New York Court of Appeals affirmed, the
"attempt to distinguish officer and directors from the corporation they represent for the purposes of
evading an arbitration provision is contrary to the established policy of this State." Hirschfield
Productions, Inc. v. Mirvish,218 A.D.2d 567,568 (1st Dep't 1995), aff'd,88 N.Y.2d 1054, 1056
(1996). And in Bleumer v. Parkway Ins. Co,277 NJ. Super. 378,408-13 (Law Div. 1994),the
plaintiff argued that he should be permitted to sue his employer's chief finanoial officer in court
because the chief financial officer was
compel arbitration and stayed any further proceedings in court. Id. at 4I3.
3 Complaints assefting violations of the New York City Human Rights Law, which are subject to arbitration
agreernents, but are filed in couft, are uniformly compellecl to arbitration. See, e.g., Thomas v. Public
Storage, lnc.,957 F. Supp. 2d 496,497 (S.D.N,Y. 2013),
5
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In sum, Ms. Carlson's ploy of filing against Mr. Ailes alone in the Superior Court of New
Jersey to
justify her
Alle
applicable law
CONCLUSION
Ms. Carlson's attempt to game the system so as to avoid the arbitration provision for her
completely baseless allegations is contrary to law and unsupported by the facts. The arbitration
provision in the Agreement required Ms. Carlson to file her Complaint, which squarely relates to her
employment at Fox News, with the AAA in New York City. There is no legal basis upon which she
can rightfully assert that she was entitled to sue Petitioner Ailes in court and sully his reputation in
public. Mr. Ailes's Petition to compel arbitration and stay all judicial proceedings should be granted
in all respects.
Dated: July 15,2016
Respectfully submitted,
Attorneys
James R. Asperger
865 S. nigueoa St., 1Oth Floor
for Petitioner
6
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Roger Ailes