Lawyers for former Fox News host Gretchen Carlson and her ex-boss, Fox News chief Roger Ailes, are fighting a battle of legal filings: First came Carlson’s stunning complaint last week in a New Jersey state court, alleging lewd and wildly inappropriate behavior by Ailes in his supervision of Carlson over an 11-year career at the leading cable-news network. Then attorneys for Ailes signaled their intent to remove the case from the court system and into an arbitration proceeding, in accordance with the arbitration provision of Carlson’s contract with Fox News.
That Carlson and her people wanted a one-on-one proceeding against Ailes is right there at the top of the civil action. It names only Ailes, and not Fox News, as the defendant.
This blog reported on Saturday that Ailes’s attempt to steer the case into the shadows will face some legal hurdles, in large part because Carlson’s employment contract doesn’t feature the boss as a party. “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,” noted arbitration expert Paul Bland in comments to the Erik Wemple Blog. Yesterday, the New York Times struck a similar theme, quoting an expert as saying, “To the extent that Ailes is a stranger to the agreement, he doesn’t necessarily get to take advantage of it.”
In light of all the wrangling, we asked Carlson’s lawyer, Nancy Erika Smith, whether the complaint had cited Ailes as a defendant for the explicit purpose of sidestepping arbitration. She answered, “I think that Gretchen made the decision to sue Roger Ailes because Roger Ailes has talked a lot for his whole career about personal responsibility and she wanted Roger Ailes to take personal responsibility for his behavior.” The doctrine of personal responsibility is indeed a rallying cry for certain Fox News talent, though a search didn’t immediately turn up a slew of such quotes from Ailes himself. He did say in 2008 that President Obama “needs to focus Americans on personal responsibility.”
On the broader issue of arbitration, Smith leaves little doubt about her position: “Listen, do I want to be in arbitration? No. I don’t think arbitration is fair,” she said, noting that the rules of discovery and civil procedure don’t apply. As to the folks doing the arbitrating, Smith said, “They’re all white men.”
About all this arbitration back-and-forth, a Fox News spokeswoman passed along this statement: “Roger Ailes is the Chairman & CEO of FOX News. Every single allegation in Gretchen’s complaint allegedly took place at FOX News headquarters in New York where he sat in his capacity as CEO. Suing only him is a ludicrous ploy to try to get around the completely enforceable arbitration clause in her contract. You can’t separate the CEO from the company he runs.”