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Ex-Fox News anchor Gretchen Carlson says her arbitration clause with her former employer doesn’t extend to her sexual harassment allegations against CEO Roger Ailes, and her attorneys on Friday filed a lengthy reply to his motion to compel to prove it.
“Employers who want to bind officers, executives managers and other employees to the employment contract or the arbitration clause do so by explicitly including them,” writes Carlson’s attorney Nancy Erika Smith in the opposition. “Fox specifically chose not to do so.”
Carlson claims her contract with the network wasn’t renewed because she repeatedly rebuffed Ailes‘ sexual advances. Smith argues the anchor’s claims of sexual harassment and retaliation aren’t based on her employment contract with Fox and notes that they are not entwined with any claims of breach of contract.
“Ms. Carlson’s complaint expressly alleges that Ailes acted outside the scope of his agency, authority and employment and contrary to the interests of Fox News Network and instead acted to satisfy his own prurient sexual interests,” Smith writes, adding that even if the arbitration clause were applicable to this claim, Ailes forfeited his right to enforce it because he violated the “Draconian” confidentiality clause embedded within it.
“He has materially breached that clause by causing documents and other information about this matter to be publicly disseminated in an attempt to smear Ms. Carlson,” Smith writes, pointing specifically to a collection of handwritten notes from Carlson to Ailes that were released by the network.
“Carlson has sued only the perpetrator of the discriminatory and retaliatory conduct — the man who demanded sexual favors from her and marginalized and humiliated her — Ailes,” Smith writes. “Moreover, the Human Rights Law imposes additional limitations and hurdles to suing an employer based on conduct of an employee that are not implicated in an action against the employee alone.”
This comes on the heels of Ailes beefing up his legal team with the Academy of Motion Picture Arts and Sciences’ top attorney John B. Quinn and Susan Estrich, whose résumé boasts everything from first female president of the Harvard Law Review to Fox News contributor. Quinn and Estrich aim to move the case to New York, then to arbitration.
Smith indicated Friday in a statement they’ll be opposing that move in a motion to be filed early next week.
“After invoking jurisdiction of the New Jersey federal court and filing a motion there, Mr. Ailes decided that he doesn’t like the judge assigned to this case and he illegally is attempting to judge shop by now seeking to move the lawsuit to another jurisdiction,” Smith says in the statement. “We feel confident that the law will not allow such maneuvering.”
A Fox News representative on Friday issued this statement in response: “We’re trying to get this to the court where it belongs — if anything, Gretchen Carlson’s lawyer was attempting to judge shop by having this heard in her comfort zone of state court in Bergen County, where neither Roger nor Carlson reside. What we filed today renders these papers completely moot.”
A heated email exchange between attorneys for the parties is attached as an exhibit to the filing, and it suggests that we could see more litigation in this case stemming from public statements. Ailes‘ team alleges tortious interference with Carlson’s contractual obligation of confidentiality, while Carlson’s team alleges that Ailes and friends are defaming them, their client and several other women who’ve come forward with similar allegations of harassment.
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