After Gretchen Carlson filed her stunning sexual harassment/retaliation lawsuit against Fox News chief Roger Ailes, the cable-news giant responded, in part, by affirming that the complaint was “wholly without merit and will be defended vigorously.” An outside observer might just have concluded that Ailes was girding for a showdown in which his side of the story could get a full hearing. A fair fight within the confines of the civil justice system.
Nope, wrong impression: Ailes wants this thing to recede into the shadows, where the particulars of his dispute with Carlson won’t reach the media. This, from one of the titans of American media.
A filing Friday by attorneys David W. Garland and Barry Asen in a New Jersey federal court signaled Ailes’s intent to pluck the case out of the court system and into an arbitration proceeding, pursuant to Carlson’s now-expired contract with Fox News, from which she was terminated on June 23. She served as an afternoon news host after spending eight years as a co-host of the inimitably awful morning show “Fox & Friends.” The filing cites the following arbitration clause in Carlson’s contract:
Any controversy, claim or dispute arising out of or relating to this Agreement or Performer’s [Plaintiff’s] employment shall be brought before a mutually selected three-member arbitration panel and held in New York City in accordance with the rules of the American Arbitration Association [“AAA”] then in effect. … Such arbitration, all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence.
Now why would Ailes be looking to pull off such a maneuver? Well, the filing itself provides a hint or two. Indulge in the following language: “Plaintiff improperly filed her public Complaint with the Superior Court, as opposed to filing it with the AAA 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. Plaintiff’s counsel has been on a non-stop tour of major media outlets ever since, making one false and defamatory statement after another,” reads the filing, in part.
Oh, Roger Ailes! Where to even start? You are a towering public figure, a big shot in broadcasting, in politics, in New York, everywhere — and you run a network that has specialized in dragging the political opponents of Fox News through the dirt every day via innuendo, grave-sounding anchor voices and occasional falsehoods — especially on Carlson’s miserable former haunt “Fox & Friends.” The Erik Wemple Blog thanks you for this frenzy of self-unawareness; we promise to reference it many, many times in the future.
Back to the merits. From the start, Carlson’s complaint contained one peculiarity, aside from all the allegations that Ailes had propositioned her, had asked her to turn around so he could observer her “posterior,” had instructed her to “get along with the boys” who were allegedly harassing her and had retaliated against her after complaints. That one peculiarity is that the suit was lodged solely against Ailes and did not go after Fox News Channel. The filing by Ailes’s attorneys, with the firm Epstein Becker & Green, P.C., tilts at this ploy:
In a transparent attempt to evade the Agreement and her contractual commitment to arbitrate, Plaintiff named only Mr. Ailes as a defendant in this action, rather than naming Fox News as a defendant as well. At the same time, however, she could not avoid identifying Mr. Ailes by his corporate title, “the Chairman and CEO of Fox News.” (Asen Cet. Ex. B. at ¶ 3) Such gamesmanship does not permit Plaintiff to file in the Superior Court and publicly engage in a “tar and feather” campaign against Mr. Ailes.
Again, Ailes appears so hurt by negative attention in the media. Does he know not what he does?
All this legal-eagling set off a war of statements Friday night between the two sides. Nancy Erika Smith and Martin Hyman, who are representing Carlson, said, “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.”
And Ailes’s attorney Asen said, “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.”
That mandatory arbitration clauses have invaded TV news isn’t at all surprising. These things are like crabgrass — and even if you are unfamiliar with them, you’ve probably signed one. They’re common in all manner of contracts, from auto purchases to home improvements to employment. They generally stipulate that if you have a dispute, you have to submit to binding arbitration and waive your right to resolve the matter in the civil justice system. According to the National Employment Lawyers Association, a 2010 study found that 36 million employees — or about a third of the non-union workforce — were subject to mandatory arbitration of workplace disputes.
Fox News management made a sound decision in choosing the American Arbitration Association (AAA) as its agent of choice. According to a 2011 study by Cornell University’s Alexander Colvin, employees prevail less frequently and recover less money in cases arbitrated by the AAA — the study examined nearly 4,000 cases between 2003 and 2007 — than they do in trials. And in any case, job-discrimination complaints have a poor success rate in federal courts.
Paul Bland, an expert on arbitration clauses and executive director of Public Justice, tells the Erik Wemple Blog that as a general rule, only the parties to an arbitration clause can invoke it. After reading the court documents filed by Carlson’s lawyers, Bland noted that the agreement is between Fox News and Carlson. “Ailes is not named in it. Their argument is that FOX means Ailes. They should have written more broadly, most arbitration clauses name others who work for or with, are associated with, etc. I consider him a non-party under this language. Poor drafting,” writes Bland in an email.
“There are some limited exceptions to the general rule that non-parties can’t enforce arbitration clauses,” he continues, “so Ailes’ team will have some arguments, but there’s not enough yet in the public record for anyone to handicap the chances of success. If he is not named in the clause, though, he is swimming upstream.”
He’s also drowning in a tide of hypocrisy. “It is repulsive that Ailes is trying to force this extremely serious matter into a secretive, rigged system where Ms. Carlson’s chances of getting justice are far lower even if everything she alleges is true,” notes Bland. “The problems of secrecy in arbitration are really highlighted in this case — you look at all of the women who have come forward with very similar stories, and you can see why Ailes would prefer to keep a lid on all of this by avoiding the public court system where the evidence becomes a matter of public record.” That’s something to keep in mind the next time Chris Wallace or Bret Baier gripes about breakdowns in government transparency.
Another thing to consider is that Carlson worked at Fox News for 11 years, presiding in some way over thousands of hours of programming. Over all those hours, Carlson was adjudged reliable and honest enough such that Ailes and his lieutenants placed their precious Fox News audience in her hands. Now, all of the sudden, she has become the source for her lawyers’ dissemination of “one false and defamatory statement after another.” Even you, Roger Ailes, can’t have it both ways.