Arbitrator to Decide Trump Campaign Staffer Claim

Earlier this month, a New York Supreme Court judge decided a former campaign staffer‘s lawsuit regarding harassment could not be moved to private arbitration because her NDA didn’t specify that. Rather, it was merely an option and contained nothing about her job responsibilities, terms of her employment, salary, benefits, or her ability to pursue her own claim. Per the ruling, the state court observed the arbitration clause confined arbitration to "any dispute arising under or relating to this agreement." The state judge also decided it did not require arbitration for any "dispute between the parties" or even "any dispute arising out of plaintiff’s employment." In fact, the court did recognize an arbitrator's province in determining arbitrability, but said is was not even close call and was so clear on this specific, narrow clause as to be a question for the courts alone. Now, however, an arbitrator should have the first stab at deciding over the validity of an arbitration agreement according to a U.S. District in the Southern District of New York who ruled yesterday in a decision that appears to run counter to the state case. The new federal decision is reportedly in accordance with the prior state ruling, as it suggests that each turned on different wording of the separate complaints filed in the respective courts. The latest federal decision is certain to be presented as strong support for the appeal Trump’s legal team plans to file at the state court level. The employee sought to have the arbitration agreement declared unenforceable, saying it had been “weaponized” against her by the campaign. In his opinion and order, the federal judge said the terms of the NDA agreement she signed demands that her very argument about the agreement’s unenforceability must be determined by an arbitrator. The language of the arbitration states that any dispute "arising under or relating to" the agreement was subjected to the rules for commercial arbitration of the American Arbitration Association. Those rules state that the arbitrator has the power to rule on issues of his or her own jurisdiction, including the validity of the agreement itself. Interestingly, in noting the prior ruling at the state level, and specifically that the federal court was in no way bound by it, the judge quoted the state court critique of the language of the agreement failing to require any claims needing to be sent to arbitration, rather than any dispute under or related to the agreement. "Instead, the clause is much narrower: it allows defendant to choose whether to arbitrate any dispute that arises out of the agreement." In this, the federal judge found the claimant raised a "dispute that arises out of the agreement" --whether the agreement is enforceable, and further finding it follows that,"even on the state-court’s view of the arbitration clause, this dispute falls with the clause’s scope." As such, the federal case was dismissed, with neither party requesting to stay the case pending arbitration. See full story here-- https://bit.ly/2PTAHPh

State Judge: Arbitration not required by Trump NDA

Last week, former White House official Omarosa Manigault Newman made the rounds on national news shows about her new book and her firing which raised the question of whether she violated a signed a non-disclosure agreement (NDA) regarding her time in the Trump Administration. Meanwhile, an order in a New York lawsuit brought by another staffer during the campaign points to how Trump's future motion to compel arbitration claims may be decided. A state judge ruled Friday that another former campaign staffer‘s lawsuit regarding harassment could not be moved to private arbitration because her NDA didn’t specify that. Rather, it was merely an option and contained nothing about her job responsibilities, terms of her employment, salary, benefits, or her ability to pursue her own claim. Per the ruling, the court observed the arbitration clause confined arbitration to "any dispute arising under or relating to this agreement." The judge also decided it did not require arbitration for "any dispute between the parties" or even "any dispute arising out of plaintiff’s employment." Interestingly, the court did recognize an arbitrator's province in determining arbitrability, but said is was not even close call and was so clear on this specific, narrow clause as to be a question for the courts alone. Reportedly, Manigault Newman claims President Donald Trump is trying to silence her after his campaign filed an arbitration, claiming she violated her own non-disclosure agreement. See full news stories here-- https://bit.ly/2wgkYAT and https://usat.ly/2Bf3Cdu and court order here-- https://bit.ly/2Mna1IC

SCOTUS Subs Special Master in Water Wars

This week, the U.S. Supreme Court suddenly substituted a court-appointed Special Master after recently rejecting his ruling recommending Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit Florida water systems and remanding because he “applied too strict a standard” in rejecting Florida’s claim. The rejected recommended ruling in the decades-long Water Wars case favored Georgia and was just sent back to Special Master, Ralph I. Lancaster, Jr., of Maine who presided over and tried the original jurisdiction case back in 2016. Now, the Court has discharged him, swapping for Special Master Honorable Paul J. Kelly, Jr., a Senior Judge on the U.S. Court of Appeals for the Tenth Circuit from New Mexico, to make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia. Florida still seeks the cap on consumption that would alleviate past damage allegedly caused by Georgia. Traditionally, states as parties pay legal fees of lawyers acting as special masters, though reportedly the high court foots the bill for some administrative and clerical costs. According to the court’s docket, the 88-year-old Lancaster was paid almost a half-million dollars between 2014 and 2017. By contrast, senior judges who become special masters are on the government payroll, relieving the states of having to pay special masters’ fees. Future proceedings will weigh Georgia’s claims that any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry in southwestern Georgia. This blog has followed the Water Wars for years in other entries. Florida ultimately seeks to limit Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. See news story here-- https://bit.ly/2vBQeKZ and SCOTUS Order here-- https://bit.ly/2B6Q9nI