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AMERICAN ARBITRATION ASSOCIATION -------------------------------------------------------- X MARCUS I.

WASHINGTON, : Claimant, -against: :

: AAA Case No. 13 160 01426 12 WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC, formerly known as the WILLIAM MORRIS AGENCY, INC., : JEFFREY MEADE and SARAH : WINIARSKI, Respondents. : -------------------------------------------------------- X RESPONDENTS’ FINAL POSITION STATEMENT I. INTRODUCTION Claimant Marcus Washington alleges that Respondents racially discriminated against him with respect to his employment. However, after more than a year of arbitration proceedings, Washington failed to adduce any legally cognizable or probative evidence to substantiate his charge, or to create a genuine issue of material fact as to his claim. Instead, Washington relied on conclusory invective, abusing the arbitration process by submitting numerous, repetitive, rambling briefs attacking Respondents, their counsel and the AAA and alleging a vast racist and anti-Semitic conspiracy theory with no grounding in the factual record. No party, as the Arbitrator observed in his Second Interim Decision (at 3), is “entitled to [his] own facts.” Nor, as the Arbitrator noted in his Third Interim Decision (at 4-5), is it proper for Washington to have “subjected [Respondents] to a stream of invective from the inception,” crossing the line, more than a year ago, “from constitutionally protected First Amendment speech into unprotected torts of defamation, libel, and slander.” Washington’s insults and conclusory rants do not take the place of evidence, nor create an issue of fact where none exists.

The significant revelation from the past year of proceedings is that Washington’s claim of discrimination does not rest on any factual allegations of discrimination against him personally. Indeed, Washington has never said that he experienced or witnessed discrimination while employed as a trainee at William Morris Agency (“WMA”) a/k/a William Morris Endeavor Entertainment (“WME”)1, admitting instead that “I’ll be the first to admit that I never experienced any overt or blatant forms of discrimination or racism at William Morris.” Claimant’s 1/31/13 Reply on Summary Judgment at p. 39 (emphasis added). Washington’s only “go to” claim is that he and others are the victims of a century-old conspiracy among whites and Jews – a pernicious libel that is itself a fantastical, hateful product of his own racism and antiSemitism. The inescapable and undisputed facts are these: Washington sought a position in WME’s prestigious and highly competitive trainee program. Following a personal interview, Washington was admitted by WME into its program. Washington then experienced several unsuccessful stints as an agent’s temporary “assistant,” and several negative work performance reviews. When Washington expressed interest in leaving WME, he was offered, and voluntarily accepted, a severance package for doing so. Washington has failed to show, and is unable to show, that he was discriminated against on the basis of his race, and his claims should be dismissed. In the interest of efficiency, and because Respondents incorporate their summary judgment papers by reference2, Respondents will not in this submission revisit every argument supporting the dismissal of Washington’s claims, particularly the undisputed threshold argument
1 2

For ease of reference, Respondents will refer to WMA by its successor, WME.

Respondents rely upon and incorporate herein by reference their prior submissions on summary judgment, including their briefs (submitted on November 6, 2012 and March 15, 2013, respectively) and the supporting affidavits of Carole Katz, Jeff Meade and Sarah Van Hoven (Winiarski). 2

that, as a matter of law, the claims are time-barred. As the Arbitrator has already found all of Washington’s claims to be arbitrable, and has dismissed his specious antitrust claims, the claim left to decide is Washington’s claim for employment discrimination. II. PRELIMINARY ISSUES A. Pre-hearing disposition of this case is appropriate and warranted

Both Washington and Respondents have, at various times, agreed that the Arbitrator may decide, without a live hearing, the claims and defenses asserted in this arbitration. See Van Hoven Aff., Ex. 4 (Washington-signed arbitration agreement empowering Arbitrator to decide claims by summary judgment); First Interim Decision, dated April 18, 2013, at p. 3; Procedural Orders 1 and 2, dated August 24, 2012 and November 8, 2012, respectively; see also AAA Employment Arbitration Rules 27, 35 (permitting disposition without live hearing); McDonald v. United States Postal Serv. Agency, __ F. 3d ____, Case No. 12-4114, 2013 U.S. App. LEXIS 21217 (2d Cir. Oct. 21, 2013) (affirming district court’s grant of summary judgment dismissing pro se plaintiff’s employment discrimination claims). We concur with the Arbitrator’s October 16, 2013 Interim Decision, which re-affirmed that there now exist no issues of material fact precluding disposition of this case without hearing. III. WASHINGTON’S EMPLOYMENT DISCRIMINATION CLAIMS A. Washington presented no evidence to show that he was exposed to racist behavior or attitudes at WME

As noted, Washington admits that no one at WME displayed any racist behavior toward him (or to anyone else, for that matter). See, e.g., Claimant’s 1/31/13 Reply on Summary Judgment at p. 39 (“I’ll be the first to admit that I never experienced any overt or blatant forms of discrimination or racism at William Morris”). He fails to demonstrate a single incident on the part of WME supervisory personnel that he claims was motivated by racial or discriminatory


animus. Not even in his highly charged and emotional “goodbye email” did Washington claim he had been exposed to racism. See Compl. ¶156. Nor is there any evidence to show that Washington was treated differently from the other trainees because of his race. In fact, Washington admitted in his submissions to the Arbitrator that his work performance was a “‘legitimate, nondiscriminatory reason’” for any adverse employment actions he claims to have experienced. See, e.g., Claimant’s 1/31/13 Reply on Summary Judgment at p. 3; Claimant’s 8/15/12 Motion for Summary Judgment at 37 (“The Respondents’ do provide a ‘legitimate, nondiscriminatory reason’ for the numerous adverse employment actions that I personally experienced … my work performance”). No evidence was introduced by Washington to demonstrate a reason, other than Washington’s frequently sub-standard work performance, to explain his failure to thrive as a WMA trainee and to advance to an agent’s assistant’s position. B. Washington presented no evidence to show that he was a victim of disparate treatment based on race

Although Washington never succinctly described the basis for his discriminatory treatment claims, these claims can be classified as alleging (i) disparate treatment in hiring and non-promotion, and (ii) discriminatory constructive discharge. Each of these claims fails. Washington is and was unable to establish a claim of disparate treatment in hiring because he was in fact hired by WME in 2008 for the only position for which he applied – a spot in the approximately two-year trainee program. Meade Aff. at ¶¶5-6, 12. Trainees had no expectation or assurance of guaranteed advancement, and their at-will employment was subject to terms and conditions that Washington was aware of from the outset. Id. at ¶¶6-7. Less than 10% of the trainees and floaters employed during the period Washington was at WME went on to become coordinators or agents at WME. Id. at ¶8. Instead, trainees have traditionally viewed


this prestigious program as a stepping stone to entertainment-related jobs in other organizations. Id. at ¶7. Ironically, Washington now insists that he was qualified to become an agent at the time he applied for the trainee program, yet he never applied to be an agent; nor would WME have allowed someone with such de minimus professional experience to bypass its trainee program and immediately become an agent. Meade Aff. at ¶12. Washington also could not establish a claim of disparate treatment in non-promotion. The gist of Washington’s non-promotion claim appears to be that after his unsuccessful stint as a trainee he should have been hired as an assistant, coordinator, or even agent. This claim fails because, among other reasons, Washington was in a highly competitive program where, treated like everyone else, he failed to excel. Race had nothing to do with his unusually high number of negative reviews, and race had nothing to do with his failure to secure an assistant’s position in the very few instances (only 2) he applied for one.3 See Meade Aff. at ¶25. The trainee program was highly competitive and designed to be a ground-up program, in which participants started in the company mailroom and worked in a variety of departments and for a variety of people. Meade Aff. at ¶¶13-14. Even full-time assistants are asked to perform the tasks that Washington felt were beneath him. Meade Aff. at ¶17 (“[f]irst and foremost, an assistant’s function revolves around providing a support function for the agent and necessarily includes ‘basic clerical duties’”). Washington was not assigned any of these tasks because of his race. To the extent there were assignments that Washington perceived as undesirable (such as IT work or being asked to go to IKEA to buy furniture for an agent, Compl. ¶ 140), they were part
While Washington has bachelor’s and graduate degrees, so did many of the trainees. Among the trainees in the program were a Harvard MBA, two law school graduates from New York University and Fordham, respectively, as well as alumni of other graduate programs, and others with equivalent or far superior work and internship experience. Meade Aff. at ¶¶10-11. 5

of the job for any trainee – the proverbial “low man on the ladder.” Meade Aff. at ¶17 (“Trainees and floaters are essentially called upon to ‘do what needs to be done’ to support the Agency’s agents, which certainly included, for example, assignments to WMA’s IT and Accounting Departments”). While Washington’s work performance was not uniformly inferior, Washington accumulated at least 21 negative comments in the approximately 18 months he worked at WME. Meade Aff. at ¶¶20-23. For his part, Washington concedes he had little formal training and that he made errors. 12/21/10 Complaint at ¶¶28-29. In an e-mail to Meade following one performance review, Washington said that for the most part he agreed with the criticisms of his work “because everyone has room for improvement.” Claimant’s 8/15/12 Motion for Summary Judgment, Ex. Q. Washington applied only twice when approximately 20 assistant positions became available during his time at WME. Meade Aff. at ¶25. Washington was not chosen for the first position because the successful candidate had nearly two years of work experience at a major entertainment company (whereas Washington had none); and by Washington’s own account he was not selected for the second position because the hiring agent chose the candidate who came highly recommended by the agent’s former supervisor. Id. at ¶25; 8/15/12 Summary Judgment Memorandum at ¶¶178-179. Race had nothing to do with Washington’s failure to be selected for the only 2 assistant positions for which he applied. Washington also could not establish a claim of constructive discharge, because he accepted a severance package and left on his own accord. Washington had the option of staying at WME for at least another 4-5 months in the hopes that a position in his area of interest would


open for which he would be selected – but he did not take it. A white trainee, after getting similarly low performance marks, took a similar severance package. Meade Aff. at ¶¶22, 32. To prevail on a constructive discharge claim, Washington needed to adduce evidence that his work conditions were “intolerable.” Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993) (quoting Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (a plaintiff must show intolerable working conditions and allege conditions “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign”). Washington fails to cite a single instance to demonstrate a work environment so awful that he had no choice other than to leave. Washington’s goodbye e-mail, moreover, makes clear that he was voluntarily choosing to leave, because of what he perceived as shortcomings in WME’s managing style and approach. 12/21/10 Complaint at ¶156. (“STOP THE MICROMANAGING AND GROUPTHINK … it’s leading to be the deterioration of this company”). In various submissions Washington has alleged only in conclusory terms that WME treated him differently because he is black. As Washington stated in his Complaint: 172. Mr. Washington is not alleging that William Morris discriminated against him due to his race, color and/or perceived national origin. Based on the federal, state and city civil and human rights laws, the overwhelming amount of sociological and organizational research on the topic of discrimination in the workplace, and numerous articles published over the decades chronicling this issue of racism in Hollywood in magazines and newspapers including The New York Times, Los Angeles Times,


The Hollywood Reporter, Entertainment Weekly and others, this is fact. But it’s not “fact.” As discussed below, Washington cannot cite to a stack of studies on discrimination that have nothing to do with WME and rely exclusively on them in claiming that WME has been engaged in a 100-year-old conspiracy to maintain white/Jewish dominance of the entertainment industry. To accept Washington’s argument would be to endorse his racial and ethnic stereotyping and to permit a claimant to evade summary judgment based simply upon a generalized and inaccurate view of the entertainment industry and the talent agency workplace. Washington has admitted that WME never treated him differently because of his race; and his claim of disparate treatment fails for that reason alone. C. Washington’s disparate impact claim also fails

Without having any basis for claiming that WME discriminated against him, Washington has resorted to principally arguing that WME, as part of a white/Jewish conspiracy, has systematically kept minorities out of the entertainment industry. This claim too fails, because apart from his conclusory allegations, Washington did not substantiate any pattern or practice that has had a disparate impact on people of color. Instead, he argued that he and others were victims of a century-long white/Jewish conspiracy to keep black people out of motion picture studios and talent agencies. This “theory,” sounding as though it comes from the Protocols of the Elders of Zion, is not a substitute for an argument grounded in facts and law. It cannot be the basis for a finding that WME, or anyone else for that matter, has discriminated against black people. And despite Washington’s many claims to the contrary, this is not really a disparate impact case. It is a (baseless) case alleging disparate treatment, rolled into a book-length screed that repeats the worst lies about Jews and the entertainment business.


Washington has also adduced no evidentiary support for his claim that WME relies predominantly on word-of-mouth referrals and that such referrals lead only to white/Jewish people getting hired. Washington, for one, was hired after seeing a public advertisement for the trainee position and applying for the job through the normal channels. Meade Aff. at ¶5. Finally, Washington cannot sustain a disparate impact claim by exclusively or principally pointing to the racial composition of WME’s workforce. Allegations that merely allege a bottom-line racial imbalance in the workforce are insufficient to support a disparate impact claim. Wards Cove Packaging Co. v. Atonio, 490 U.S. 642, 653 (1989); see also Lopez v. Metro Life Ins. Co., 930 F.2d 157, 159 (2d Cir. 1991). And Washington is incorrect to suggest that WME does not have any black agents. His repeated references to the “inexorable zero,” a setting where an employment practice amounts to a total barrier to members of a protected class, is belied by his own statement that approximately 20 African-Americans were hired and/or promoted to agent. Claimant’s 8/15/12 Summary Judgment Memorandum at ¶48; 12/21/10 Complaint at ¶60; see also Capruso v. Hartford Fin. Servs. Grp., Inc., Case No. 01 Civ. 4250, 2003 U.S. Dist. LEXIS 6044, at *21 (S.D.N.Y. Apr. 10, 2003). D. Respondents did not retaliate against Washington

Washington also claims that Respondents retaliated against him by giving him undesirable assignments and causing him to leave WME. But Respondents could not have retaliated against Washington because under his version of events he did not allege discrimination until spring 2010 at the earliest. See Compl. ¶¶ 139-149 (section beginning “Mr. Washington’s Complaints of Discrimination”). Thus, his allegations that “Defendants have retaliated against Plaintiff by, inter alia, stripping him of important job duties and assignments and replacing them with dead end assignments, subjecting him to increased scrutiny, providing him with lower performance evaluations than he deserved” (12/21/10 Complaint at ¶ 187) fail as

a matter of law because the alleged retaliation took place prior to any “protected activity.” See Cifra v. GE Co., 252 F.3d 205, 216 (2d Cir. 2001) (citing 42 U.S.C. § 2000e-3(a)). Also, even if Washington received assignments that he felt were undesirable or beneath him, these assignments were (as he well understood) part of the trainee job for which he applied and was hired. These assignments, moreover, are also generally a part of the job of an assistant (see Meade Aff. at ¶17), which is the position Washington hoped to attain. Washington has not shown that negative performance reviews were the product of anything other than his work performance – which even he has acknowledged was less than ideal. See 12/21/10 Complaint at ¶¶28-29; Claimant’s 8/15/12 Motion for Summary Judgment, Ex. Q. There was also no adverse action, and certainly no retaliation, against Washington. Washington accepted a generous severance package in lieu of staying at WME for another four or five months, at which point his position as a trainee/floater would have ended anyway. Washington did not come away from the trainee program with substantially less financial compensation than he would have received had he stayed the entire two years. Unquestionably, Washington was well-aware, as was every trainee, that a longer-term job was not guaranteed for anyone. In similar circumstances, courts have found that the decision to offer an employee a severance package “does not constitute an adverse employment action.” Dollman v. Mast Indus., 731 F. Supp. 2d 328, 340 (S.D.N.Y. 2010) (dismissing claim). Furthermore, “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). Where an employee “merely lists the sequence of adverse job actions culminating in h[is] termination[,]”


but the employee was given warnings prior to any protected activity, the Second Circuit has held that a retaliation claim cannot be sustained. Bernard v. JP Morgan Chase Bank NA, 408 F. App'x 465, 469 (2d Cir. 2011) (since the “adverse employment actions against Bernard began several months before Bernard engaged in any potentially protected activity, Bernard cannot demonstrate a causal connection between them. The district court therefore correctly granted summary judgment to JPMC on Bernard's retaliation claim”). Where, as here, “[o]ther than the temporal sequence of events, no evidence of causal connection has been offered” on the undisputed facts, plaintiff's evidence of retaliation is insufficient to raise a triable issue of fact. Hayes v. Cablevision Sys. New York City Corp., Case No. 07-CV-2438, 2012 U.S. Dist. LEXIS 45622, at *51 (E.D.N.Y. Mar. 31, 2012); McPhatter v. New York City, 378 F. App'x 70, 72 (2d Cir. 2010) (“As the district court noted, ‘plaintiff was subject to escalating disciplinary actions… well before she engaged in any protected activity’”). E. Any claims against Meade and Van Hoven must also be dismissed

Washington has sued Meade and Van Hoven for “aiding and abetting” WME’s discrimination, but they cannot be liable for aiding and abetting anything since Washington has not proven disparate treatment or disparate impact. Moreover, Washington cannot make out a claim for retaliation against Van Hoven and Meade, who were involved in hiring Washington, and were not involved in the discussions that led to WME offering and Washington accepting a severance package. See Trigg v. New York City Transit Auth., Case No. 99-CV-4730, 2001 U.S. Dist. LEXIS 10825 (E.D.N.Y. July 26, 2001), aff'd, 50 F. App'x 458 (2d Cir. 2002). F. Washington is not entitled to reinstatement

As a remedy, reinstatement is not possible. Not only has Washington himself rejected the idea of reinstatement in response to an inquiry from the Arbitrator (see July 30, 2013 Hearing Tr. at 23-24); reinstatement here would not be possible, because there is no position to which

Washington could be reinstated. No trainee/floater stays at WME indefinitely, and usually has about two years in which to land an assistant’s position. Washington worked at WME for a year and a half, and then received five months’ severance, effectively completing the trainee program. WME cannot be ordered to reinstate Washington to a position that he would have been compelled to leave at the end of approximately two years, as part of universally applicable company practice. McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 362 (1995) (in Age Discrimination in Employment Act case, holding that “[i]t would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds”); Geller v. Markham, 635 F.2d 1027, 1036 (2d Cir. 1980) (in ADEA case, declining to award reinstatement where plaintiff’s position was only meant to last a year). Reinstatement is also not feasible since Washington has tortiously maligned the Respondents, in this arbitration, in court and on the Internet, hurling anti-Semitic slurs and falsely accusing them of plotting to keep black people out of the entertainment business, as well as urging that they be criminally charged. Respondents cannot be compelled to “reinstate” someone who is himself so filled with hate, and who has caused them so much harm. IV. “EXHIBIT 31” IS IRRELEVANT TO THIS ARBITRATION Washington sidetracked this arbitration with his fixation on a document called “Exhibit 31.” This document became an issue in the later stages of a closed and unrelated litigation involving Leonard Rowe, who claimed that WME and other talent agencies discriminated against minorities working in the concert promotion business. Rowe claimed that Exhibit 31 showed that in 1998 and 1999, certain employees of WME and other talent agencies had been the senders or recipients of e-mails containing derogatory words. The United States District Court for the Southern District Court summarily dismissed the Rowe case, and found Exhibit 31

to be “unidentified and unauthenticated,” “irrelevant” and “inadmissible.” If Exhibit 31 was of no relevance to the Rowe litigation, it cannot possibly be of greater relevance in this arbitration, particularly since Exhibit 31 purports only to list derogatory terms found in the e-mails of certain people who worked in WME’s Beverly Hills office in 1998 and/or 1999, whereas Washington worked in WME’s New York office starting 10 years later, in 2008. Exhibit 31 has nothing to do with Washington’s employment at WME or the reasons for his not obtaining a longer-term position. Washington has conceded as much, stating during the July 30 telephone conference convened by the Arbitrator that “my case is not about Exhibit 31.” July 30, 2013 AAA Hearing Tr. at p. 11. This point is underscored by Washington’s admission in his June 14, 2013 submission that “none of the names listed on Exhibit 31 [were WMA or WME employees] who worked in the New York office” during the period of his employment (September 2008-2010). See also Second Interim Decision, dated July 12, 2013, at p. 11 (noting that Exhibit 31 “appears to be losing some of whatever possible evidentiary traction it may have previously had”). Although Respondents have exhaustively established the irrelevancy of Exhibit 31, it is important to note, in this final statement, that: • The first and only time Exhibit 31 surfaced was when it was submitted in 2003 as an unauthenticated exhibit (then labeled “Exhibit 31”) by Plaintiff Leonard Rowe’s attorneys, as part of Rowe’s scatter-shot opposition to the 2003 summary judgment motion by defendants to dismiss Rowe’s claims. Even in that case, summarily dismissed nearly a decade ago, Exhibit 31 was found to be “unidentified and unauthenticated,” and was disregarded by the Court, as “irrelevant” and inadmissible. See Exhibit 8 to


Respondents’ June 14, 2013 Memorandum in Response to the Arbitrator’s April 18, 2013 Interim Decision. • All of the emails searched by the plaintiffs’ appointed expert in the Rowe Litigation (to which Exhibit 31 ostensibly relates) were from the years 1998 and 1999 (since this was the only timeframe searched). This was 10 years before Washington even commenced employment at WME. • Exhibit 31 is an 18-page exhibit that contains (on pages 1 to 13) the names of employees of Creative Artists Agency (“CAA”), a talent agency that was WMA’s co-defendant in the Rowe Litigation. The 19 WME employees who are listed on Exhibit 31 were all employed in 1998-99, in WME’s Beverly Hills office, whereas Washington worked in New York from 2008 to 2010. These employees had no involvement in any of the matters related to Washington’s employment at WME in 2008-10. • Only two of the 19 WME persons listed in Exhibit 31 are presently employed by WME. Those 2 people continue to be employed by WME in its Beverly Hills office. They have, and had, no involvement with Washington. Even assuming arguendo that incoming or outgoing WME emails (or their attachments) contained derogatory words (which could as readily have appeared in scripts, song lyrics or newspaper articles), – and there is no basis for such an assumption – their presence in an email from 1998 or 1999 (ten years before Washington even started in WME’s trainee program) would have no significance for this case. Indeed, in a case alleging individual disparate treatment, another employee’s statement about race discrimination is generally found to have no relevance.


See, e.g., Patterson v. County of Oneida, 375 F.3d 206, 221-22 (2d Cir. 2004) (affirming the grant of summary judgment to the defendants, and finding an affidavit submitted by another former employee to be irrelevant, since the former employee who submitted it did not work at the sheriff’s department at the same time as the plaintiff); Smith v. Revival Home Health Care, Inc., Case No. 97-4415, 2000 U.S. Dist. LEXIS 4105, at *10-11 (E.D.N.Y. Mar. 28, 2000) (“[s]tatements made long before and not in the context of the adverse action cannot support a claim of discriminatory motive for that action”). Here, of course, Washington does not even put forth evidence that any person who worked at WME between 2008 and 2010 experienced racial discrimination. All he has is Exhibit 31, which does not even prove that any WMA/WME employee ever used a single derogatory word in an offensive manner. In sum, as was noted in the Arbitrator’s Second Interim Decision, Claimant’s allegations, “[w]hile rhetorically rich, [are] ultimately … 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 31] and establish its relevance.” Washington has neither authenticated Exhibit 31 nor established its relevance. Accordingly, while the admission of Exhibit 31 “into evidence” allows the Arbitrator to consider it, the document should be deemed irrelevant and immaterial to Washington’s claims. V. RESPONDENTS’ CLAIMS FOR ATTORNEYS FEES AND DEFAMATION Respondents’ July 30, 2012 response to Washington’s demand for arbitration included a counter-claim for the legal fees incurred as a result of Washington’s repeated breach of his arbitration agreement (which agreement both the court and the Arbitrator found to be valid and binding). Washington improperly commenced litigation in the District Court, and then (as he has also done here) filed numerous frivolous motions, both in the District Court and Second Circuit, seeking to undermine the arbitration agreement that he signed twice. Washington’s unsuccessful

litigation caused Respondents to incur $104,897.25 in attorneys’ fees and costs, as set forth in the accompanying Affidavit of Michael P. Zweig (with Exhibits). These attorneys’ fees and costs emanate directly from Washington’s breach of the arbitration agreement, and would not have been incurred but for the breach; and accordingly, Respondents are entitled to recover them from Washington as damages. See, e.g., Terminal Cent., Inc. v. Henry Modell & Co., 212 A.D.2d 213, 218 (1st Dep’t 1995) (where there has been a breach of an agreement, the injured party is entitled to “fair and just compensation commensurate with his loss”); Mobius Mgmt. Sys., Inc. v. Fourth Dimension Software, Inc., 880 F. Supp. 1005, 1025 (S.D.N.Y. 1994) (damages include the extra cost plaintiff had to incur to remedy the impact of defendant’s breach, where plaintiff would not have had to take additional steps but for defendant’s breach of the agreement). In the Arbitrator’s Third Interim Decision, it was also noted that Respondents were permitted to claim damages for Washington’s defamation, libel and slander. 9/25/13 Interim Decision at 5. The many instances of defamation are too numerous to mention here; documentation of these instances is contained within, among other places, Exhibit A to Respondents’ October 11, 2013 letter to the Arbitrator. With a view toward the expeditious resolution of this arbitration, and without prejudice, Respondents seek only an award of nominal damages in the amount of $1,000, representing partial, if only symbolic, compensation for the injuries they incurred from Washington’s reckless and wanton misuse of the arbitral process.


Dated: November 20, 2013 Respectfully submitted, LOEB & LOEB LLP By: /s/ Michael Zweig Michael P. Zweig Christian D. Carbone 345 Park Avenue New York, NY 10154 (212) 407-4000 Attorneys for Respondents .