AMERICAN ARBITRATION ASSOCIATION CASE 13 160 01426 12

Marcus Washington, pro se Claimant v. William Morris Endeavor Entertainment LLC, formerly known as the William Morris Agency, et. al., Respondents

INTERIM DECISION 2 (INTERIM DECISION 1 INCORPORATED BY REFERENCE HEREIN)

DISCUSSION AND ANALYSIS INTRODUCTION AND BACKGROUND Claimant asserts, and ultimately must prove, that Respondents unlawfully discriminated against him in his employment because he is African-American.

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He was hired by Respondents as an Agent Trainee in mid-August, 2008, began work on September 2, 2008, and received a buy-out in 2010 (having ceased work in April 2010 but remained on payroll until mid-August 2010, after a lunch at Claimant’s invitation in New York City with Respondents’ Ms. Carole Katz, the Los Angeles based head of Human Resources. In early 2011, Claimant unsuccessfully sued Respondents in the United States District Court for the Southern District of New York, and unsuccessfully appealed to the Second Circuit. He has yet to meet with any success whatsoever in the federal courts; they have unequivocally repudiated all of Claimant’s initiatives to avoid arbitration and instead obtain a jury trial in federal court. Respondents moved to compel arbitration in early February 2011. In midJune, 2012, the Clerk of the Court issued a Non-Jurisdiction Letter. I accepted the AAA administrative appointment in late July, 2012 to serve as the Arbitrator in this matter. Shortly thereafter, in an August 24, 2012 conference call, the parties indicated that they were amenable to me deciding this matter solely on Motions and without the need for an on-site hearing. Via their extensive Motion papers, the parties seek summary judgment, dismissal of

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the opposition’s claims in their entirety, significant money damages and additional remedies and attorneys’ fees and costs.

ARBITRATION HEARING SHOULD PROCEED Subsequent to the August 24, 2012 conference call, on December 21, 2012 the United States Court of Appeals for the Second Circuit vacated a District Court’s grant of Summary Judgment to defendant employer without a hearing and expressed jurisprudential unease with decisions regarding employment law issues rendered solely via Summary Judgment papers. Rivera v. Rochester and Genesee Regional Transportation Authority, F.3d, No. 11-762 (December 21, 2012) The late United States Senator from New York, Daniel Moynihan, often said that while everyone is entitled to their own opinion, we are not each entitled to our own facts. The facts respectively marshaled thus far make Summary Judgment rendered exclusively by Motion practice not viable. There are deep genuine disputes of material facts between the parties. Furthermore, the continuing troubling indeterminacy of potentially very important possible evidence (“Exhibit A”) may be more thoroughly and, hopefully, finally resolved
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by sworn testimony in a hearing. In any event, subsequent to the August 24, 2012 conference call, the United States Court of Appeals for the Second Circuit expressed jurisprudential apprehensions about the propriety of Summary Judgment on submitted papers alone serving as the instrument to resolve employment disputes.

THE ARBITRATION AGREEMENT Claimant expressly reiterates that he wants a jury trial in federal court, absent Summary Judgment entirely in his favor in this Arbitration forthwith. He regards the 2008 and 2009 arbitration agreements he signed as unconscionable, tainted with illegality, malum in se, and signed under duress in the depths of the Great Recession. While rhetorically rich, this language ultimately is merely conclusory rote, however, unless and until the larger factual context explicates Claimant’s adjectival cascade with tangible, credible, objective facts sufficient to authenticate “Exhibit A” and establish its relevance.

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“UNCONSCIONABILITY” A facially legitimate employment arbitration agreement could be rendered unconscionable if the agreement is used to obstruct, rather than “allow for adequate discovery.” At the inception of employment, and subsequently on July 1, 2009, following the William Morris Agency and Endeavor combining their businesses, Claimant signed the Mutual Arbitration Agreement, agreeing to arbitrate, inter alia, claims of unlawful race discrimination. The agreements sweep broadly. In 2009 in 14 Penn Plaza v. Pyett, 129 S,.Ct. 456 (2009), the United States Supreme Court upheld an arbitration agreement quite similar to those in this arbitration. See, David L. Gregory, Mandatory Labor Arbitration of Statutory Claims and the Future of Fair Employment, 19 Cornell Journal of Law and Public Policy 429—458 (2010)(with E. McNamara).

The parties’ Mutual Arbitration Agreement provides that if any provision of the Agreement “is held by a court to be invalid, the remaining provisions shall be severable and continue in full force and effect.” I need not address the

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potential nonviability of this portion of the Agreement at this time, since there has not been any finding of the Agreement’s purported “Unconscionability.” The parties’ Agreement is otherwise thus far largely unexceptional.

“EXHIBIT A” Claimant remains free throughout continuing discovery and at the forthcoming arbitration hearing to continue to try to provide credible information about Exhibit A: e.g., after the Rowe/Heslin meeting, who retained the document that Rowe saw on Heslin’s desk? Were copies made or distributed? If so, by and to whom? When? Federal Judges Patterson and Castel have issued rulings adverse to Claimant. In 2003, Judge Patterson found Exhibit A, in its earlier incarnation aka Exhibit 31, “unidentified and unauthenticated,” “irrelevant” and “inadmissible.” On page 2 of his 43 page decision of November 8, 2012 denying Mr. Rowe’s Motion to reopen his case, Judge Patterson unambiguously says “Mr. Rowe’s claim is meritless.”

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Respondents emphasize that after 55 depositions and over two million documents produced in the Rowe litigation, Respondents and their lawyers continue to adamantly maintain that they never saw or knew of such emails and never received any such email from Rowe litigants. While those decisions may not necessarily have res judicata or collateral estoppel consequences as a formal matter in this Arbitration, the federal courts are nevertheless entitled to deference. Judge Castel found that the 2009 arbitration agreement trumps the 2008 agreement. I agree. On their face, neither the 2008 nor the 2009 arbitration agreements appear problematic. The California Supreme Court and its progeny explain how an initially facially adequate arbitration agreement can be rendered unconscionable by subsequent (in)action by a party. See, Leasa Compton v. Superior Court of Los Angeles County and American Management Services, 214 Cal. App. 4th 873 (March 19, 2013), reviewing Armendariz v. Foundation Health Sych-Care Services, 24 Cal. 4th 83 (2000) and its progeny, summarizing “the [arbitration] agreement must allow for adequate discovery.” Claimant is not Mr. Rowe. Claimant is entitled to have this proceeding on Claimant’s merits. Likewise, although Claimant openly considers Mr. Rowe an

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ally, Claimant must present Claimant’s case. While I appreciate Respondent’s difficult position of seemingly having to prove the proverbial negative, I expect Respondents to remain open to facilitating reasonable pertinent discovery requests regarding particular persons named on the current version of Exhibit A. The parties in this arbitration have agreed to be bound by New York law. New York, thus far, has not adopted California’s often overt anti-arbitration ethos of past few decades. The arbitration agreements in this Arbitration provide that the law of the state where the employee works(ed) governs. The broad principle remains true in every jurisdiction—if the facially fair arbitration agreement frustrates rather than facilitates a fundamentally fair arbitration, the facially legitimate arbitration agreement can become unconscionable and unenforceable by the operative conduct of a party. Claimant has asserted from the inception that, for more than a decade, the odious “N-word” has been used by superior agents of Respondent regarding employees of color. By pure fortuitous circumstance in another case (Rowe) more than a decade ago, the “N-word” list was inadvertently seen on the desk of SNR [Sonnenschein, Nath, and Rosenthal] attorney Raymond Heslin. Mr. Leonard Rowe, in an Affidavit in another proceeding, affirms: “I personally
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saw [the] Exhibit … in its entirety. It contained all pages including 1 and 17….At that time, it contained the word ‘nigger’ 349 times.” Exhibit A may have become both considerably more, and less, informational than in previous incarnations. One constant remains --- Claimant sees it as the classic evidentiary “smoking gun,” while Respondents remain adamant regarding its inauthenticity, irrelevance, and inadmissibility. Respondents continue unequivocal denials. In response to Claimant’s persistence that Respondents and their lawyers must have the infamous “nigger” emails, thus involving more than a dozen lawyers and three law firms suppressing evidence---Respondents reiterate: “This is utter nonsense.” (Respondents’ Response at pages 2-3, footnote 2, to Interim Decision 1) “Claimant’s persistent contention that Rowe’s expert and Rowe’s counsel produced to WMA (and its counsel Loeb & Loeb) what Claimant now refers to as ‘nigger’ emails, and then concealed such documents for two years, is calumny. It is, demonstrably, an outright and knowing lie. Not a single such email was ever produced, or is even known ever to have existed. ” (Respondents’ Reply at page 5 to Interim Decision 1)

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Within a few days of receipt of my Interim Decision 1, Claimant expressly states in his email writing to Mr. Michael Zweig, Esq. that “I [Claimant] refuse to communicate any further with him [Mr. Christian A. Carbone, Esq., a lawyer colleague of Mr. Zweig at Loeb & Loeb, the law firm representing Respondents ] “….”Based on Christian’s arrogant and defiant response to my request to ‘meet and confer,’ coupled with the fact that he was not involved in Rowe and clearly knows nothing about what actually occurred in electronic discovery.” (Respondents’ Reply to Interim Decision 1, Exhibit 2) Each party has the right to be represented by the person(s) of their choosing. Neither party has a veto regarding the opposing party representatives. Claimant, not Respondents, summarily truncated this most recent opportunity to potentially authenticate Exhibit A. The (non)admissibility of Exhibit A in the present arbitration could have significant influence. As I explain in Interim Decision 1, “I am staying further decisions on the remainder of the still-pending claims at this Arbitration’s summary judgment phase at this time. I do so to spur further responsive discovery, in the hope that these measures may facilitate the ascertainment of sufficient contextual clarity

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regarding Exhibit A...I order the parties to meet and confer and, if possible, to enter into joint stipulations regarding Exhibit A.” I expect Claimant to take the initiative, as the proponent of Exhibit A coming into evidence. I take Arbitral notice of the stunning advances in ediscovery retrieval forensics, and the corresponding reductions in cost over the course of more than a decade since, for example, the inception of the Rowe litigation. Claimant asks that Respondents and their lawyers provide $200,000 to cover the ediscovery costs incurred in prior litigation. That request is denied. I am, however, amenable to a more specific, narrow, carefully focused, and cost effective request by Claimant for EED materials (including, but not limited to, emails) within Respondent’s custody and control that may helpfully elucidate and answer current and continuing questions regarding Exhibit A. There is less than a handful of named persons meeting all of the

conditions set forth in Interim Decision 1, with the consequence that Exhibit A appears to be losing some of whatever possible evidentiary traction it may have previously had, in the absence of a critical mass of current employees who were also named on both the earlier, and the more contemporary, versions of Exhibit A.

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In this case before me at this Arbitration, I continue to need to know more about proposed Exhibit A. The parties’ assessments of Exhibit A dramatically vary, to say the least. The author(s) have not been definitively identified. I still want to know who authored it. Is it genuine? Is it relevant? The possible testimony of Messrs. Raymond Heslin, Esq. and Mr. Leonard Rowe seems essential in clarifying the chain of custody and control regarding Exhibit A. The arbitration should not be further delayed indefinitely while the logjam regarding proposed Exhibit A is being resolved.

ORDERS Via the AAA, on June 20, 2013 I completed receipt of the parties’ responses to my April 18, 2013 Interim Order 1, whereby I granted Claimant’s Motion in part to temporarily stay the Arbitration. In light of the voluminous materials generated in the context of this intricate Motion practice, although I do not formally order it, I am certainly

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amenable to the parties respectively filing amended claims/counterclaims/answers via AAA by August 2, 2013. Does Claimant seek reinstatement among his remedies? If so, under any particular proposed conditions? Please reply via AAA by August 2, 2013. For the reasons set forth above, I ORDER: As to the Stay of the Arbitration, it is lifted. As to the Motions for Summary Judgment and Cross Motions to Dismiss, including the dismissal of certain named individuals from this case, Decision is deferred. The convening and commencement of the arbitration hearing at the offices of the American Arbitration Association, 120 Broadway, 21st floor, New York City, NY 10271 shall proceed forthwith. As to Exhibit A and any and all potentially forthcoming proferred evidence, I continue my April 18, 2013 First Interim Decision Order in full force and effect. Each party has the continuing duty of facilitating discovery. Pursuant to New York law, discovery requests, and the statutory law against unlawful employment discrimination, shall be liberally construed.

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Further as to Exhibit A, Claimant is to provide with specificity by August 9, 2013 via AAA a list of additional persons, if any, situated analogous to Tom Ross through Paola Palazzo as set forth on page 34 of Claimant’s Reply to the First Interim Decision. The parties shall cooperate in scheduling and taking depositions. The parties shall endeavor to complete taking primary depositions by Friday, September 13, 2013, 5 p.m. EST. The parties shall cooperate in ascertaining mutually conducive days for the arbitration hearing. By Friday, August 2, 2013, 5 p.m., the parties shall notify AAA in writing of any six dates between September 23 and December 16, 2013 selected by the parties as mutually conducive for convening the arbitration hearing. Upon receipt, AAA shall promptly notify me. I will endeavor to accommodate the parties’ proposed dates and will confirm two dates for the AAA notice of hearing. As to Respondents’ Motion for a Protective Order: Respondents may draft and submit a proposed Protective Order for my consideration that both preserves and protects the rights of Respondents and their counsel while also protecting Claimant’s constitutional rights.
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As to the Antitrust claims, Decision remains deferred. So Ordered,

David L. Gregory I, David L. Gregory, affirm that, on this 12th Day of July, 2013, I have executed this document as my Second Interim Decision in this matter.

David L. Gregory

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WASHINGTON v. William Morris SECOND INTERIM DECISION JULY 12 2013

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