UPDATE, 4:14 PM: In another volley in the sexual harassment case Gretchen Carlson has launched against Roger Ailes, the former Fox & Friends co-host today formally pushed back against the Fox News boss’ attempt to put the whole thing in arbitration. Using her employment contract with FNC as a buffer, Carlson’s answer is – not so fast pal because I’m suing you, not Fox News.
“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. Fox specifically chose not to do so,” says the opposition filing brief late Friday from attorney Nancy Erika Smith of Smith Mullin, P.C. (read it here). “Thus, the plain contract language allows Carlson to sue Ailes in a court rather than a secret arbitration and likewise gives Defendant Ailes the right to sue Fox employees in a public court proceeding.”
“Forcing Ms. Carlson into arbitration now would certainly prejudice her, because it would effectively prevent her from publicly defending herself and responding to Ailes’ public smear campaign — a tactic he is reputed to have mastered over the years,” adds the 36-page paperwork. In what has been a steady back and forth in the courts and the media since Carlson first filed her complaint on July 6, this comes just hours after Ailes withdrew his seeking of arbitration in federal court in New Jersey today and sought to have the matter moved to New York City.
“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,” said Smith in a statement on Friday, adding that she will file early next week to halt Ailes’ latest move. “We feel confident that the law will not allow such maneuvering.”
“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,” a FNC spokesperson told Deadline after Carlson filed her motion today. “This is the latest false statement she has made. She has tried to rig this case to deny Mr. Ailes the agreed-upon forum, which is arbitration.”
“While Ailes seeks to use the arbitration clause as a shield in this action, by his conduct he has acknowledged that the arbitration clause does not apply to him: he has made repeated public disclosures concerning Carlson’s claim, which, if the arbitration clause were enforceable and applicable to him, would violate its confidentiality provision,” Carlson’s filing today adds, stating that the Fox News chief “is in material breach” of the “provisions” of the employment agreement the ex-host had with the cable newser.
PREVIOUSLY, 1:22 PM: The battle between Fox News boss Roger Ailes and former host Gretchen Carlson over the latter’s claims that he sexually harassed her has a new potential arena – New York City. Just seven days after Ailes’ lawyers filed a motion in federal court in New Jersey to move the former Fox & Friends co-host’s lawsuit to arbitration, and to stay all further judicial proceedings, they now have withdrawn that request and instead want the whole matter dealt with in the federal Southern District court in the Big Apple.
“There is no legitimate reason for Ms. Carlson’s strategy, particularly in light of the confidentiality provision in her Agreement,” notes the brief Ailes’ lawyer filed amidst a flurry of documents Friday afternoon of the former host’s FNC employment deal, the public war of words since the initial July 6 complaint, and the move by Carlson’s Garden State-based attorney Nancy Erika Smith to have the matter handled there. “Rather, the goal of Ms. Carlson’s entire campaign is obvious: besmirch Mr. Ailes’s reputation so that he will pay her an exorbitant settlement.”
“The case belongs in the Southern District as venue is proper there and only that Court has the power under the FAA to compel arbitration in New York City, which is what Ms. Carlson agreed to when she entered into the Agreement,” adds a brief from the FNC chief’s attorneys today (read it here).
“As a result, Mr. Ailes has now filed a Petition to Compel Arbitration in the Southern District,” the brief continues. “In view of these developments, Mr. Ailes notified this Court earlier today that he has withdrawn his Motion to Compel Arbitration pending here, and now moves for an Order transferring this case to the Southern District, or alternatively, for and Order staying this case pending the disposition of the Petition in the Southern District. Once the case is transferred to the Southern District, Mr. Ailes will request that it be consolidated with the Petition.” Carlson’s primary residence is in Connecticut and Ailes’ is in New York.
Fox News is not a formal party to the matter, but the cabler newser said the same day that Carlson’s case was first filed in New Jersey Superior Court that it has launched an internal review of the claims. Since then, various FNC on-air talent, including Bill O’Reilly, have publicly defended their boss’ character. “This is a retaliatory suit for the network’s decision not to renew her contract, which was due to the fact that her disappointingly low ratings were dragging down the afternoon lineup,” Ailes himself said in a July 6 statement. The media baron added that the lawsuit was “offensive,” “wholly without merit” and said it will be “defended vigorously.”
David W. Garland and Barry Asen of NYC based Epstein Becker & Green PC are representing Ailes, along with John Quinn and former FNC commentator Susan Estrich of L.A.’s Quinn Emanuel Urquhart & Sullivan, LLP.