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Case 1:16-cv-05671 Document 3 Filed 07/15/16 Page 1 of 9
UNITED STATES
STATES DISTRICT
DISTRICT COURT
COURT
LINITED
SOUTHERN
DISTRICT
OF
NEW
YORK
YORK
NEW
OF
DISTRICT
SOUTHERN
ROGER AILES,
AILES,
ROGER
Petitioner
Petitioner
No. _ _ _ _ _
No.
ECF
ECF Case
Case
v.
GRETCHEN CARLSON,
CARLSON,
GRETCHEN
Respondent.
Respondent.
PETITIONER
MEMORANDUM OF LAW
AILES'S MEMORANDUM
PETITIONER ROGER AILES'S
IN SUPPORT
OF
HIS
PETITION
TO
COMPEL ARBITRATION
SUPPORT
EPSTEIN
P.C.
GREEN, P.e.
BECKER && GREEN,
EPSTEIN BECKER
URQUHART
QUINN
EMANUEL URQUHART
QUINN EMANUEL
LLP
&
& SULLIVAN,
SULLNAN, LLP
lsi
W. Garland
Garland
lsl David W.
Ronald
Green
Ronald M.
M. Green
David
Garland
W. Garland
David W.
Barry
Asen
Barry Asen
250
Avenue
Park Avenue
250 Park
New
York,
York 10177
10177
New York
New York, New
Telephone:
(2t2) 351-4500
351 -4500
Telephone: (212)
motionforthcoming)
hac vice
vice motion
forthcoming)
John
B. Quinn
John B.
Quinn (pro
Qtro hac
forthcoming)
(pro
motion
vice
hac
Susan
R.
Estrich
(pro
hac
vice
motion
forthcoming)
Estrich
Susan R.
R. Asperg
Aspergerr
James
James R.
th
Floor
1Oth Floor
St., 10
865
Figueroa Si.,
865 S.
S. Figueroa
94017
California 90017
Los
Angeles, California
Los Angeles,
(213) 443-3000
443 -3000
Telephone:
Telephone: (213)
Ailes
Roger Ailes
Attorneys
Petitioner Roger
Attorneys for
for Petitioner
FIRM:3
7652788v 1
FIRM:37652788v1
T ABLE OF
OF CONTENTS
CONTENTS
TABLE
Page
TABLE OF
OF AUTHORITIES
AUTHORITIES .,.,..
..... ... .. ...... .... ...... ... .... ..... ... .. ... ...... ...... ... .. ... .. ... ".... ........ .. ...... ... ... ........ ii
TABLE
PRELIMINARY STATEMENT
STATEMENT ...... .... .. ... .... ... .. ..... .... .. ... .. .. ..... .... .. ........ .. .... ... .. ...... ... .. .. .... ........... 1
PRELIMINARY
ARGUMENT
ARGUMENT
COURT SHOULD COMPEL
COMPEL ARBITRATION
ARBITRATION IN
IN ACCORDANCE
ACCORDANCE WITH
WITH
THIS COURT
MS. CARLSON'S EMPLOYMENT
EMPLOYMENT AGREEMENT
AGREEMENT AND SHOULD STAY
STAY ALL
FURTHER JUDICIAL
JUDICIAL PROCEEDINGS.........
PROCEEDINGS ..... ........ .. .... .. .. .. ............. ... ..... .... ...... ... .. .. .... .. .... ... 3
FURTHER
A.
A.
...............................33
Law Requires That
That Arbitration Provisions
Provisions Be Enforced.
Enforced ................................
Federal Law
B.
B.
...."........4
.4
Carlson's Arbitration
Arbitration Agreement
Agreement Is Both Applicable
Applicable and Enforceable.
Enforceable ..............
Ms. Carlson's
CONCLUSION ........... ....... ... .. ........... .. ....... ............ .. ............. .. ... ... ...... .. .... .. .... .. ............ ....... .. ...... .. 66
CONCLUSION.
FIRM:37652788v\
FIRM:37652788v1
TABLE OF
OF AUTHORITIES
AUTHORITIES
TABLE
Page
A. CASES
CASES
A.
AT&T Techs.,
Techs., Inc.
Inc. v.
v. Commc'ns
Commc 'ns \4/orkers
Workers of
ofAmerica,
America, 475
475 U.S.
U.S. 643
643 (1986)
(1986) .................................,4
.4
AT&T
Bleumer v.
v. Parlo,vay
Parkway Ins.
Ins. Co,,277
Co., 277 N.J.
N.J. Super.
Super. 378
378 (Law
(Law Div.
Div. 1994)
1994) ...............................................55
Bleumer
Imports Ltd.
Ltd. v.
v. Saporiti
Saporiti ltalia
Italia S.p.A.,1
S.p.A., 117
F. 3d
3d 655
655 (2d
(2d Cir. 1997) .........................,4
.4
17 F.
Campaniello Imports
Circuit City Stores,
Stores, Inc,
Inc. v. Adams,532
Adams, 532 U.S. 105 (2001)
(2001) ................................................................. 3
Circuit
a
Witter Reynolds, Inc. v. Byrd,470
Byrd, 470 U.S. 213 (1985)'..'...'.,
(1985) ............................................................... 3
Dean Witter
Gilmer v.
v. Interstate/Johnson
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)......'
(1991) ........................................................ 3
Gilmer
1995), aff'd,
Hirschfield Productions, Inc. v.
v. Mirvish,2IS
Mirvish, 218 A.D.2d 567 (1st
(1st Dep't 1995),
afJ'd,
Hirschfield
88
N.Y.2d
1054
(1996)
..............................................................................................................
55
(1996)
10s4
88
4
Frome, 275 F. Supp. 2d 496
496 (S.D.N.Y. 2003) ............................................................... .4
v. Frome,275
Marcus v.
(1985)...'
lnc.,473
Mitsubishi
473 U.S. 614 (1985)
.......................... 3J
v. Soler Chrysler-Plymouth, Inc.,
Corp. v.
Mitsubishi Motors Corp.
â
(19S3)..'....
U.S. 1 (1983)
Moses
H Cone
460 U.S.
............................. 3
Corp.,460
v, Mercury Constr. Corp.,
Hosp. v.
Cone Memorial Hasp.
Moses H.
Cir. 1993) ............. .... .... 55
Pritzker
Inc., 7 F.3d
F'3d 1110 (3d Cir.
Smith,lnc'7
Fenner & Smith,
Lynch, Pierce Fenner
v. Merrill
Meruill Lynch,
Pritzker v.
.4,55
Roby
v. Corp.
996 F.2d 1353 (2d
Cir. 1993) ......................................................... ....4,
(2dCir.
of Lloyd's,
Lloyd's,996F.2d1353
Corp. of
Robyv.
(S'D.N.Y' 2013)
2013) ............................. .... ...... ... 55
Thomas
957 F.
496 (S.D.N.Y.
2d496
F. Supp.
Supp. 2d
Lnc.,957
Storøge, Inc.,
v, Public Storage,
Thomas v.
(3d Cir.
2007) ........................................... 55
Tracinda
Cir' 2007)
212 (3d
F '3d 212
AG, 502
502 F.3d
DailmerChrysler AG,
Corp, v.v. DailmerChrysler
Tracinda Corp.
B.
B. STATUTES
STATUTES
Federal
.................................................................................... 3
seq...'....'."
er seq
U.S.C. §$ 11 et
Act, 99 U.S.C.
Arbitration Act,
Fedçral Arbitration
New
8-107 .............................................. 11 55
Code §$ 8-107
Adm. Code
N.Y.C' Adm.
Law, N.Y.C.
Rights Law,
Human Rights
York City
City Human
New York
iill
FIRM:37652788v\
FIRM:37652788v1
PRELIMINARY STATBMENT
STATEMENT
PRELIMINARY
In June
June 2013,Iìespondent
2013, Respondent Gretchen
Gretchen Carlson,
Carlson, aa well-known
well-known cable
cable television
television news
news anchor
anchor
In
employed by
by the
the Fox
Fox News
News Network,
Network, LLC
LLC ("Fox
("Fox News")
News") in
in Manhattan,
Manhattan, entered
entered into
into aa multi-million
multi-million
employed
dollar, three-year
three-year employment
employment agreement
agreement (the
(the "Agreement")
"Agreement") with
with Fox
Fox News
News that
that contained
contained an
an
dollar,
arbitration provision.
provision. In
In pertinentpart,
pertinent part, the
the arbitration
arbitration provision
provision provides:
provides:
arbitration
Any controversy,
controversy, claim
claim or dispute
dispute arising out of
of or relating
relating to
to this
this Agreement
Agreement or
or
Performer's [Ms.
[Ms. Carlson's] employment shall be
be brought
brought before
before a mutually
mutually
Performer's
York
New
City
panel
in
selected
three-member
arbitration
panel
and
held
in
New
York
City in
in
held
and
selected three-member arbitration
of the American Arbitration
Arbitration Association ["AAA"]
["AAA"] then
then
accordance with
with the rules of
accordance
with
connected
testimony
in effect.
effect....
Such
arbitration,
connected
with
and
filings,
evidence
all
arbitration,
,..
the arbitration,
arbitration, and
and all
all relevant
relevant allegations
allegations and
and events
events leading
leading up
up to
to the
the
the
arbitration, shall be held in strict confidence.
(See
to the accompanying
accompanying Petition).
12, attached
attachedto
(See Exhibit A, page 12,
filed aa
last week
Ms. Carlson
Carlson last
Ignoring
the Agreement's
binding arbitration
arbitration provision,
provision, Ms.
week filed
Agreement's binding
Ignoring the
of and relating
Complaint in New Jersey
.Iersey Superior Court, Bergen County, asserting claims arising out of
Petitioner
her employment,
employment, Petitioner
to
during her
that during
alleges that
The Complaint alleges
Fox News.
News. The
at Fox
her employment at
to her
her, discriminated
discriminated
Roger Ailes,
Chief Executive Officer, sexually harassed her,
Ailes, Fox News' Chairman and Chief
she had
because she
against
Agreement, purportedly because
by not renewing her Agreement,
her by
retaliated against
against her
her, and
and retaliated
against her,
of
pleads only
an alleged
alleged violation of
only an
rebuffed his
The Complaint pleads
complained. The
and complained.
his alleged advances and
(The
law). (The
(not New
Jersey law).
New Jersey
8-107 (not
Adm. Code
Code §$ 8-107
the
N.Y.C. Adm.
Law, N.Y.C.
Rights Law,
Human Rights
York City
City Human
New York
the New
Complaint
Petition)'rI
B to
the Petition).
Exhibit B
to the
as Exhibit
is attached
attached as
Complaint is
Superior
Jersey Superior
in the
New Jersey
the New
public Complaint
Ms.
Complaint in
her public
filed her
improperly filed
not only
only improperly
Ms. Carlson
Carlson not
her confidentiality
contidentiality
violated her
has repeatedly
repeatedly violated
Court,
she has
AAA, she
with the
the AAA,
filing itit with
to filing
opposed to
as opposed
Court, as
Media) could
could
(aptly-named Ripp
Ripp Media)
firm (aptly-named
obligation
public relations
relations firm
and their
their public
counsel, and
she, her
her counsel,
so that
that she,
obligation so
him
and coerce
coerce him
and on
on television,
television, and
vilify
on-line and
newspapers, on-line
in the
the newspapers,
publicly, try
this case
case in
try this
Ailes publicly,
vilify Mr.
Mr. Ailes
New
of New
District of
for the
the District
Court for
the District
District Court
1I The
Court to
to the
Superior Court
Jersey Superior
from New
New Jersey
was removed
removed from
The Complaint
Cornplaint was
Jersey
(See Petition
12)
Petition ~lf 12)
of citizenship.
citizenship. (See
basedon
on diversity
diversity of
Jersey based
1
FIRM:3
7652788v I
FIRM:37652788v1
to settle.
settle. Ms.
Ms. Carlson's
Carlson's counsel
counsel has
has been
been on
on aa non-stop
non-stop tour
tour of
of major
major media
media outlets
outlets ever
ever since,
since,
to
making one
one non-privileged
non-privileged statement
statement after
after another:
another: articles
articles quoting
quoting the
the Complaint
Complaint and/or
and/or Ms'
Ms.
making
The New
New York
York Times,
Times, The
The Wall
Wall
Carlson or
or her
her counsel's
counsel's outrageous
outrageous comments
comments have
have appeared
appeared in
in The
Carlson
The Washington
Washington Post,
Post, The
The New
New York
York Daily
Daily News,
News, People
People Magazine,
Magazine, Politico,
Politico, Daily
Daily
Street Journal,
Journal, The
Street
Beast, The
The Holtywood
Hollywood Reporter,
Reporter, New
New York
York Magazine,
Magazine, among
among others.
others. Moreover,
Moreover, as
as further
further evidence
evidence
Beast,
of Ms.
Ms. Carlson's
Carlson's and
and her
her counsel's
counsel's
of
intentional violation
violation of
of the
the Agreement's
Agreement's conf,tdentiality
confidentiality
intentional
provision, they did not reach out to Mr. Ailes before filing the Complaint
Complaint in the Superior Courl.
Court.
struck without warning
warning and blasted
blasted their
their salacious allegations
allegations to the
the media
media immediately
Instead, they struck
upon hling.
filing.
upon
attempt to evade the Agreement
Agreement and her contractual
contractual commitment
commitment to arbitrate,
In aa transparent attempt
Ms.
as a defendant in her Superior Court action, rather than naming
Ms. Carlson
Carlson named only Mr. Ailes as
in her
her
Ailes in
not avoid
avoid identifying Mr. Ailes
Fox
could not
she could
however, she
same time, however,
At the
the. same
well. At
News as
as wel1.
Fox News
3).
at ~
(See Petition Ex. B at
News." (See
Complaint
fl 3).
'othe Chairman and CEO of Fox News."
Complaint by his corporate title, "the
file in
obligations, file
contractual obligations,
her contractual
Such
ignore her
to ignore
permit Ms.
Carlson to
Ms. Carlson
not permit
gamesmanship did
did not
Such gamesmanship
an
counsel, an
lead counsel,
Ailes. Her lead
Mr. Ailes.
Superior
in aa smear campaign against Mr.
publicly engage
engage in
Court, and
and publicly
Superior Court,
below, both
As addressed
addressecl below,
better. As
experienced
knows better.
plaintiff-side employment lawyer, knows
Jersey plaintiff-side
experienced New Jersey
binding
avoid aa binding
cannot avoid
employee cannot
Second
an employee
hold that
that an
law squarely
squarely hold
Circuit law
Third Circuit
and Third
Circuit and
Second Circuit
(such as
as
officer (such
cotporate officer
her employer's
employer's corporate
arbitration
naming her
merely naming
by merely
her employer
employer by
with her
agreement with
arbitration agreement
Chairman
defendant.
as the
the defendant.
Ailes) as
CEO Ailes)
and CEO
Chairman and
Court
this Court
requests that
that this
respectfully requests
For
Ailes respectfully
Petitioner Ailes
follow, Petitioner
that follow,
those that
reasons and
and those
For these
these reasons
the explicit
explicit
pursuant to
to the
in Manhattan
Manhattan pursuant
compel
AAA in
at the
the AAA
claims at
Ms. Carlson's
Carlson's claims
of Ms.
arbitration of
the arbitration
compel the
2
Court.2
in this
this Court.
terms
proceedings in
further proceedings
all further
and stay
stay all
Agreement and
of the
the Agreement
terms of
22Mr.
has
Jersey has
New Jersey
District of
of New
tlie District
Courl for
for the
District Court
U.S. District
the U.S.
filed inin the
arbitration filed
motion to
to compel
compel arbitration
Ailes's motion
Mr. Ailes's
withdrawn.
was withdrawn.
that itit was
tirne that
been
motion atatthe
the time
to the
responded to
the motion
not responded
had not
Ms. Carlson
Carlson had
withdrawn. Ms.
bee¡ withdrawn.
22
FIRM:37652788vl
FIRM:37652788v I
ARGUMENT
ARGUMENT
THIS COURT
COURT SHOULD
SHOULD COMPEL
COMPEL ARBITRATION
ARBITRATION IN
IN
THIS
ACCORDANCE WITH
WITH MS.
MS. CARLSON'S
CARLSON'S EMPLOYMENT
EMPLOYMENT
ACCORDANCE
AGREEMENT AND
AND SHOULD
SHOULD STAY
ST AY ALL
ALL FURTHER
FURTHER
AGREEMENT
JUDICIAL PROCEEDINGS.
PROCEEDINGS.
.IUDICIAL
A.
A.
Law Requires
Requires That
That Arbitration
Arbitration Provisions
Provisions Be
Be Enforced.
Enforced.
Federal Law
Federal
U.S.C. $§ 2 (the "FAA"), states
states lhat
that a contract
contract
Act, 9 U.S.C.
Section 2 of the Federal Arbitration Act,
provision "evidencing a
a transaction involving
involving commerce
commerce to
to settle
settle by
by arbitration
arbitration a
a controversy
controversy
provision
thereafter arising out of such contract or transaction ... shall be valid, irrevocable and enforceable
enforc~able
save upon such grounds as exist at law or in equity for the revocation of any contract."
contract." Gilmer v.
v.
interstate/Johnson Lane
Lane Corp.,
Corp., 500 U.S. 20,
20, 24-25
see Circuit City Stores,
Stores, Inc.
inc. v,
v. Adams,
Adams,
24-25 (1991); see
Interstate/Johnson
532
(2001).
105, 109 (2001).
s32 U.S. 105,109
of
failure, neglect or refusal
The FAA,
refusal of
FAA, §$ 4, provides that a "party aggrieved by the alleged failure,
States district
another to arbitrate under a written agreement for arbitration may petition any United States
for an
an order directing that such
court,
. . . for
agreement, would have jurisdiction ...
save for such agreement,
court, which save
See
(emphasis added)
added) See
arbitration
in such
such agreement."
agreement." (emphasis
provided for
for in
proceed in
manner provided
in the
the manner
arbitration proceed
(1985)'
n'3 (1985).
614, 619 n.3
U.S. 614,619
Mitsubishi Motors
lnc.,473
473 U.S.
Chrysler-Plymouth, inc.,
Soler Chrysler-Plymouth,
Corp. v.
v. Soler
Motors Corp.
an
of an
judicial complaint
in violation of
complaint in
party files
files aa judicial
The
AA f~rther
when aa party
that when
further provides that
The FFAA
agreement to
stay all judicial proceedings and direct the parties
shall stay
to arbitrate, aa federal district court shall
Deanl4/itter
4; see
see also
also Dean
and 4;
to
to arbitration.
500 U.S.
25, citing
Witter
U.S.C. §§
citing 99 U.S.C.
U.S. at
at25,
Gilmer,500
proceedto
arbitration. Gilmer,
to proceed
$$ 33 and
(1985).
470 U.S.
Reynolds, Inc.
213,219 (1985).
U.S. 213,219
Byrd,470
Inc. v.v. Byrd,
of
matter of
as aa matter
favored as
is strongly
strongly favored
The
thaÍ"arbitration
arbitration is
instructed that
has long
long instructed
Court has
Tlre Supreme
Supreme Court
of
in favor
favor of
resolved in
should be
be resolved
clause should
policy
of an
an arbitration
arbitration clause
scope of
in the
the scope
policy and
any ambiguities
ambiguities in
that any
and that
(1983)'
U.S. 1,1,24-25
Corp.,460
arbitration.
460 U.S.
24-25 (1983).
Mercury Constr.
Constr. Corp.,
Hosp. v.v. Mercury
Cone Memorial
Memorial Hasp.
Moses H
H. Cone
arbitration. Moses
o'unless itit may
the
positive assurance
that the
assurance that
with positive
said with
Thus,
may be
be said
arbitration "unless
must compel
compel arbitration
Thus, aa court
court must
3J
FIRM
:37652788v II
FIRM:37652788v
arbitration clause
clause is
is not
not susceptible
susceptible of
of an
an interpretation
interpretation that
that covers
covers the
the asserted
asserted dispute."
dispute." AT&T
AT&T
arbitration
Techs., Inc.
Inc. v.
v. Commc'ns
Commc 'ns Lkorkers
Workers of
ofAmer,,
Amer., 475
475 U'S'
U.S. 643,
650 (1986).
643,650(1986).
Techs.,
B.
B.
Ms. Carlson's
Carlson's Arbitration
Arbitration Agreement
Agreement Is
Is Both
Both Applicable
Applicable and
and Enforceable.
Enforceable.
Ms.
The arbitration
provision in
in the
the Agreement
Agreement here
here expressly
expressly provides
provides that
that "la]ny
"[a]ny controversy,
controversy,
The
relating to
to this
this Agreement
Agreement or Performer's
Performer's [Ms.
[Ms. Carlson's]
Carlson's]
claim or disp¡te
dispute arising
arising out
out of or relating
claim
be brought
brought before
before aa mutually
mutually selected
selected three-member
three-member arbitration
arbitration panel
panel and
and held
held in
employment shall be
New York City in accordance with the American Arbitration Association then
then in
in effect."
effect." The
New
of the Agreement could not be clearer: the Complaint,
Complaint, which on its face involves claims
claims
language of
out of
of and
and relating to Ms. Carlson's
Carlson's employment
employment at Fox
Fox News,
News, belongs at the AAA.
arising out
of attempting
attempting to evade her
uniformly reject Ms,
Ms. Carlson's
Carlson's transparent tactical strategy of
Courts uniformly
arbitration agreement by arguing that only the employer, and not the
the employer's executive, signed
v. Corp.
the
apply. For example, in Roby v.
and therefore the provision purported does not apply.
Agreement, and
the Agreement,
because
not enforceable because
was not
of
the arbitration agreement was
plaintiffs argued
argued that the
where the
the plaintiffs
of Lloyd's,
Lloyd's, where
argument and
the argument
rejected
Circuit rej
defendants'
ected the
it, the
the Second
Second Circuit
parties to
to it,
not parties
were not
chairpersons were
defendants' chairpersons
instructed:
employees or
held that
that employees
have held
Courts
consistently have
circuits consistently
other circuits
in this
this and
and other
Courls in
are
agreement
party
an
arbitration
of
an
entity
that
is
a
party
to
an
arbitration
agreement
are
disclosed
agents
is
to
a
that
disclosed agents of an entity
of the
this [naming
that this
protected
We believe
believe that
... We
agreement.
protected by
that agreement.
by that
[naming of
If
it
were
tegal
difference.
is
a
distinction
without
a
legal
difference.
If
it
were
Chairs]
a
without
Chairsl is a distinction
naming
by naming
agreements by
the agreements
otherwise,
circumvent the
easy to
to circumvent
be too
too easy
would be
otherwise, itit would
Agents
themselves.
entity
of
the
entity
Agents
themselves.
individuals
as
defendants
instead
instead
of
the
as
defendants
individuals
Ltd' v.v.
Imports Ltd.
Campaniello Imports
also Campaniello
Roby,
996 F.2d 1353,
(emphasis added);
see also
added); see
(2d Cir.
1993) (emphasis
1360 (2d
Cir. 1993)
1353, 1360
Roby,996F.2d
496,
2d496,
F. Supp.
Supp. 2d
Frome,275
Saporiti
275 F.
(2d Cir.
Marcus v.v. Frome,
1997); Marcus
Cir.1997);
655,668-69
668-69 (2d
F. 3d
17 F.
3d 655,
ltalia S.p.A.,
s.p.A.,l117
saporiti Italia
44
FIRM:37652788v
FIRM:37652788v I I
504-05 (S.D.N.Y.
(S.D.N.Y. 2003).3
2003).3 Naming
Naming Chairman
Chairman and
and CEO
CEO Ailes
Ailes as
as aa defendant,
defendant, and
and not
not Fox
Fox News,
News, isis
504-05
precisely such
such aa "distinction
"distinction without
without aa difference."
difference."
precisely
VIew. It
It has
has directed
directed that
that "[b]ecause
"[b]ecause aa
The Third
Third Circuit
Circuit shares the
the Second
Second Circuit's
Circuit's view.
The
principal is
is bound
bound under
under the
the terms
terms of a
a valid
valid arbitration
arbitration clause,
clause, its
its agents,
agents, employees,
employees, and
and
principal
representatives are
are also covered under the terms of such agteements."
agreements." Pritzker v.
v. Meruill
Merrill Lynch,
Lynch,
representatives
Inc. , 7 F.3d
F.3d 1110,
1110, 1121-22 (3d Cir.
Cir. 1993) (affirming
(affirming the District Courl's
Court's
Pierce Fenner & Smith, Inc.,7
arbitration). More recently, the Third Circuit reaffirmed
reaffirmed its holding in Pritzker,
Pritzker,
decision to compel arbitration).
decision
stating: "The Pritzker
Pritzker rule
that nonsignatory agents may
may invoke a valid
valid arbitration agreement
agreement
rule -- that
stating:
into by
by their principal -- is
is well-settled
well-settled and
and supported
supported by other
other decisions
decisions of this
this Court."
entered into
2007)'
Corp. v.
v. DailmerChrysler
DailmerChrysler AG, 502
FJd 212, 224 (3d Cfu.
Cir. 2007).
502F,3d212,224
Tracinda Corp.
attempting to
reject
Likewise, the New York and New Jersey state courts rej
ect the tactic of attempting
to avoid
York, as
as the
itself. In New
arbitration
by suing
New York,
the corporation itself.
instead of the
officer, instead
corporate officer,
suing aa corporate
arbitration by
Appeals affirmed, the
New York Court of Appeals
Appellate Division, First Department
explained and the New
Department explained
of
"attempt to
the corporation they represent for the purposes of
and directors from the
to distinguish officer and
policy of this
State." Hirschfield
this State."
evading
the established policy
to the
is contrary
contrary to
arbitration provision is
an arbitration
evading an
1054, 1056
N.Y.2d 1054,
(1st Dep't
1995), ajJ'd,
Dep't 1995),
aff'd,88
Productions,
218 A.D.2d
88 N.Y.2d
567,568 (1st
A.D.2d 567,568
Mirvish,218
Inc. v.v. Mirvish,
Productions, Inc.
1994),the
Div. 1994),
378,408-13 (Law Div.
277 N.J.
the
(1996).
NJ. Super.
Super. 378,408-13
Ins. Co.,
Co,277
(1996). And
in Bleumer
Bleumer v.v. Parkway Ins.
And in
in court
court
finanoial officer
officer in
chief financial
his employer's
plaintiff
permitted to
sue his
employer's chief
to sue
he should
be permitted
plaintiff argued
should be
that he
argued that
his
with his
agreement with
his arbitration
arbitration agreement
because
to his
signatory to
not aa signatory
was not
financial officer
officer was
the chief
chief financial
because the
to
granted the
the defendants'
defendants'motion
employer.
motion to
Jersey court
court granted
New Jersey
Roby, the
the New
and Roby,
on Pritzker
Pritzker and
Relying on
employer. Relying
4I3.
Id. at
at 413.
compel
proceedings in
in court.
court. Id.
further proceedings
any further
and stayed
stayed any
compel arbitration
arbitration and
3 Complaints
arbitration
which are
subject to
to arbitration
Law, which
are subject
Human Rights
Rights Law,
City Human
New York
York City
violations of
of the
the New
assefting violations
Complaints asseliing
Public
e.g., Thomas
Thomas v.v. Public
See, e.g.,
to arbitration.
arbitration. See,
. agreements,
compellecl to
couft, are
are uniformly
uniformly compelled
filed inin couli,
but are
are filed
agreernents, but
(S.D.N,Y. 2013).
497 (S.D.N.Y.
Storage,
957 F.
2013),
496,497
Supp. 2d
2d496,
lnc.,957
F. Supp.
Storage, Inc.,
3
FIRM
:37652788v J
FIRM:37652788v1
55
In sum,
sum, Ms.
Ms. Carlson's
Carlson's ploy
ploy of
of filing
filing against
against Mr.
Mr. Ailes
Ailes alone
alone in
in the
the Superior
Superior Court
Court of
of New
New
In
to justify
justify her
her shameless
shameless publicity
publicity campaign
campaign should
should not
not be
be countenanced,
countenanced. All
All applicable
applicable law
law
Jersey to
Jersey
requires that
that the
the Complaint
Complaint be
be compelled
compelled to
to arbitration'
arbitration.
requires
CONCLUSION
CONCLUSION
Ms. Carlson's
Carlson's attempt
attempt to
to game
game the
the system
system so
so as
as to
to avoid
avoid the
the arbitration
provision for
for her
her
Ms.
completely baseless
baseless allegations is contrary to
to law and unsupported
unsupported by
by the
the facts.
facts. The arbitration
arbitration
completely
provision in
in the
the Agreement
Agreement required
required Ms. Carlson
Carlson to file her Complaint,
Complaint, which squarely
squarely relates
relates to her
provision
employment at Fox
Fox News, with the AAA in
in New York City.
City. There is no legal
legal basis upon which she
she
can rightfully assert
assert that she was entitled to sue Petitioner Ailes in court and sully his reputation
reputation in
pUblic. Mr. Ailes's
Ailes's Petition to compel arbitration and stay all judicial
judicial proceedings should
should be granted
granted
public.
in all respects.
respects.
Dated: July 15,2016
Respectfully submitted,
EPSTEIN
& GREEN, P.C.
BECKER &
EPSTEiN BECKER
QUINN EMANUEL
EMANUEL URQUHART
&
& SULLIVAN, LLP
/s/
/s/ David
l)avid W.
W. Garland
Ronald
M.
Green
Ronald M. Green
David
V/. Garland
Garland
David W.
Barry
Asen
Barry Asen
250
Avenue
Park Avenue
250 Park
New
York,
York 10177
10177
New York
New York, New
Telephone:
(212) 351-4500
351 -4500
Telephone: (212)
vice motion
molion forthcoming)
John B.
B. Quinn (pro
Qtro hac vice
forthcoming)
vice
motion forthcoming)
hac
Estrich (pro
Susan
R. Estrich
hac
vice
motion
Susan R.
Qtro
James
R. Asperger
Asperger
James R.
th
1Oth Floor
Floor
St., 10
nigueìoa St.,
865
S. Figueroa
865 S.
90017
California 90017
Los
Los Angeles,
Angeles, California
(213) 443-3000
443-3000
Telephone:
Telephone: (213)
Ailes
Attorneysfor
Roger Ailes
Petitioner Roger
Attorneys for Petitioner
66
FIRM:37652788vl
FIRM:37652788v I

petition - SDNY Blog

Transcription

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