PBS Video on Employment Arbitration

This PBS documentary provocatively entitled "How Forced Arbitration Tipped the Scales" traces employment arbitration controversies from Wall Street in the 1990's to the #MeToo era. Appearances by lawyers Cliff Palefsky and Alan Kaplinsky.

TV Stars and Producers of "Bones" Get $178.7M Arbitration Award Against Fox

While arbitration, including arbitration awards, normally remain confidential, they become public when a disputing party asks a court to confirm or vacate the arbitration award. As today's NYTimes reports, the big arbitration award against Fox "spilled into public view on Wednesday after the plaintiffs in the case filed a petition to confirm the arbitration award in Los Angeles Superior Court.
The arbitrator, Peter D. Lichtman, said that Fox pocketed tens of millions of dollars that should have gone to the 'Bones' team. He ordered Fox to pay the plaintiffs $50 million in damages and an additional $128 million in punitive damages. Fox is contesting the $128 million ruling."

Trump Campaign Loses on Scope of Arbitration Clause

The Trump campaign's motion to compel arbitration of a former staffer's harassment suit was denied by a New York judge,  the ABA Journal reports.

The court found the arbitration clause of the staffer's nondisclosure agreement confines arbitration to any dispute "arising under or relating to this agreement,” but “does not require arbitration for any ‘dispute between the parties’ or even ‘any dispute arising out of plaintiff’s employment.”

The court wrote “The arbitration clause could have been written to require any disputes arising out of plaintiff’s employment to go to arbitration or that any claims brought by plaintiff against defendant must be sent to arbitration. But it did not.”

Trump Campaign Begins Arbitration Against Omarosa

Trump's 2020 re-election campaign filed the arbitration against former senior White House adviser Omarosa Manigault Newman, alleging she breached a nondisclosure agreement. CNBC reports the case was filed with the American Arbitration Association in New York City.

NY Times Criticizes Confidentiality of Employment Arbitration

Today's New York Times refers to "the murky world of corporate arbitration, in which serious charges of misconduct are often settled behind closed doors." The case accuses parent of Kay Jewelers "of discriminating against women by denying them equal pay and promotional opportunities. The accusations of sexual harassment are included in statements employees made about pay and promotion disparities, and the accusers have sought to link the accusations to their wages."

University of Kansas Law Professor and arbitration expert Chris Drahozal gave me permission to add his point that "the arbitration rules in the Kay Jewelers arbitration agreement (National Arbitration and Mediation) are unusual in the U.S. In imposing a confidentiality obligation on the parties. By comparison, the AAA and JAMS rules impose a confidentiality obligation only on the arbitrator and the administrator. Under the AAA and JAMS rules, either party remains free to release any information about the arbitration (in the absence of a confidentiality order by the arbitrators) without consent of the other party."

Arbitration of Fox News' Anchor's Sex Harassment Claim?

"Lawyers for the Fox News chairman Roger Ailes filed a motion on Friday arguing that the sexual harassment lawsuit filed against him by a former anchor, Gretchen Carlson, should be moved from" court to arbitration, the New York Times reports.  “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,” Barry Asen, Mr. Ailes’s lawyer, said in a statement.

NYTimes discusses relationship between confidentiality and employment arbitration.

Precedent and Lawmaking in International Arbitration

International Arbitrators as Lawmakers by Rahim Moloo and Brian King.

The abstract:

Arbitration scholars and practitioners have, for many years, spilled much ink debating the role of arbitrators as lawmakers. The debate has tended to center on two questions involving the role of precedent. First, should arbitrators treat prior arbitral decisions as a form of precedent, and, if so, to what degree should they rely on them? Second, to what extent should arbitrators view themselves as precedent-makers: Is their role limited to deciding strictly the dispute that is before them, or should they take into account the potential impact of their decision on future awards? Coloring the debate on both questions have been concerns about the implications of the answers for the legitimacy of the international arbitration "regime" as a whole.

The debate has assumed more urgency in certain fields of international arbitration, such as investment treaty arbitration, where the recent availability of an abundance of public awards has spurred much interest within the international legal community. As discussed in this article, this development is unsurprising given that the publicity of awards is, in itself, one of the critical prerequisites to the possibility of viewing arbitrators as lawmakers.

While this Article will touch upon some of the issues highlighted above, its focus is different. We begin from the standpoint that regardless of whether, normatively speaking, one believes that arbitrators should perform a lawmaking function, the fact is that they do. Arbitrators regularly cite to prior awards, appear to consider themselves cabined by them to some extent, and demonstrate concern about the impact that the awards they render may have on the development of the law. Parties, for their part, pepper their pleadings with references to past awards where they are available, seeking to convince the panel to follow or distinguish what tribunals have done before. Given the reality on the ground, it seems appropriate to shift the inquiry from the whether to the when and the what. What kind of law do arbitrators make, and when do they do so? Is the process of arbitral lawmaking legitimate, and are all awards created equal as far as precedential value is concerned? These are the questions that this Article seeks to address.

New California Arbitration Statute on Consumer Arbitration Organizations

Robin E. Largent of the California Labor & Employment Law Blog writes:

in an effort to decrease the attractiveness of arbitration as a forum for dispute resolution, Governor Brown signed into law AB 802, which requires major arbitration providers such as JAMS and AAA to publish at least quarterly on their websites (beginning in January 2015) detailed information concerning arbitrations they have handled, including (1) the name of any non-consumer party involved in the arbitration (i.e. the name of the employer), (2) the nature of the dispute (e.g. employment), (3) where the non-consumer party is an employer, whether the employer was the initiating or responding party, (4) the annual wage (in a range) earned by the involved employee, (5) the amount of the claim, which party prevailed, and the amount of any award, including attorneys’ fees, (6) whether the employee was represented by an attorney and, if so, the name of the attorney and the law firm, (7) the name of the arbitrator and the amount of the arbitrator’s fees, and (8) the total number of times the employer previously has been a party in arbitration or mediation before the dispute resolution provider.  This new law has the obvious (and likely intended) effect of destroying the usual benefit of privacy that arbitration and mediation provide.

"The hermetically-sealed vault of private arbitration"

Cardozo Law Professor Myriam E. Gilles writes:

Companies, anxious to avoid any and all exposure to class actions are highly motivated to insert confidential, one-on-one arbitration mandates into the standard-form agreements that, over these same thirty years, have come to govern their relationships with employees, consumers, direct purchasers, and all manner of counterparties. As a result, all disputes under these agreements – whether they would have otherwise been brought as class or individual claims – will now be shunted into the hermetically-sealed vault of private arbitration, where there is no public, transparent decision-making process, much less stare decisis or common law development.

Her paper is entitled "The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement"