Overview
Fox News Chair Roger Ailes filed a petition in the SDNY today seeking to compel arbitration of sex discrimination and harassment claims that Gretchen Carlson, a former Fox anchor, filed in New Jersey state court. Mr. Ailes argues that Ms. Carlson’s choice to only sue Mr. Ailes (and not Fox) does not allow her to avoid her contractual obligation to resolve disputes by confidential arbitration:
Ms. Carlson not only improperly filed her public Complaint in the New Jersey Superior Court, as opposed to filing it with the AAA, she has repeatedly violated her confidentiality 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, and coerce him to settle. Ms. Carlson's counsel has been on a non-stop tour of major media outlets ever since . . . . In a transparent attempt evade the Agreement and her contractual commitment to arbitrate, Ms. Carlson named only Mr. Ailes as a defendant in her Superior Court action, rather than naming Fox as well. At the same time, however, she could not avoid identifying Mr. Ailes in her Complaint by his corporate title, the “Chairman and CEO of Fox News.” Such gamesmanship did not permit Ms. to ignore her contractual obligations, file in Superior Court, and publicly engage in smear campaign against Mr. Ailes. Her lead counsel, an experienced New Jersey plaintiff-side employment lawyer, knows better. As addressed 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 corporate officer (such as Chairman and CEO Ailes) as the defendant.The case has not yet been assigned a judge.
