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Fox News CEO Roger Ailes wants to move ex-anchor Gretchen Carlson’s sexual harassment dispute to confidential arbitration, citing a provision in her contract that demands disputes be arbitrated by a three-member panel.
“Plaintiff improperly filed her public Complaint with the Superior Court, as opposed to filing it with the [American Arbitration Association] and adhering to her contractually-required confidentiality obligation, so that her counsel could tar Mr. Ailes’s reputation publicly, try this case in the media press, and coerce him to settle,” states the motion filed Friday. “Plaintiff’s counsel has been on a non-stop tour of major media outlets ever since, making one false and defamatory statement after another.”
The motion claims Carlson’s decision to sue only Ailes, and not Fox, is a transparent attempt to evade the arbitration provision.
“Federal, New York and New Jersey law all definitively hold that a plaintiff cannot avoid an agreed-to arbitration provision with her employer by just suing a corporate officer,” the motion reads. “The Third Circuit has directed that ‘[b]ecause a principal is bound under the terms of a valid arbitration clause, its agents, employees, and representatives are also covered under the terms of such agreements.'”
Ailes‘ attorney David W. Garland writes in the motion that Carlson’s ploy is a shameless publicity campaign and her attorney Nancy Erika Smith “knows better.”
“There is no legal basis upon which she can rightfully assert that she was entitled to sue Defendant Ailes in court and sully his reputation in public,” Garland writes.
Garland also on Friday filed a notice of removal to move the proceedings to federal court, arguing that because Carlson is suing for lost compensation and her salary was “in excess of $1 million annually,” and the parties live in different jurisdictions, state court is an improper venue.
Carlson sued on Tuesday, claiming she was terminated for refusing Ailes‘ sexual advances and complaining about pervasive harassment in the workplace.
Carlson’s legal team issued a statement Friday evening in response to the motion: “Roger Ailes is trying to force this case into a secret arbitration proceeding. Gretchen never agreed to arbitrate anything with Mr. Ailes and the contract on which he relies does not mention him and is not signed by him. Gretchen intends to fight for her right to a public jury trial, a right protected by the discrimination laws and our Constitution. It is disturbing that the head of a large media company would try to silence the press and hide from the public a matter of such importance.”
Ailes‘ outside counsel Barry Asen also released the following statement that echoes the motion late Friday night: “Gretchen Carlson had an arbitration clause in her contract, stating that any employment dispute regarding her employment at Fox News must be done via confidential arbitration. Because Ms. Carlson’s lawsuit violated the arbitration clause, a motion was filed in federal court to have the case arbitrated. The federal court is the proper court to decide the motion because Ms. Carlson’s primary residence is in Connecticut and Mr. Ailes’ primary residence is in New York.”
July 8 5:20 p.m. Updated with a statement from Carlson’s attorneys.
July 9 10:11 a.m. Updated with a statement from Ailes‘ outside counsel.
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