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Can Gretchen Carlson's Lawyers Get Around Her Arbitration Clause?

Last week, Gretchen Carlson dropped a bomb of a lawsuit on Roger Ailes, the chairman and CEO of Fox News. Carlson, a longtime Fox personality until she was let go three weeks ago, accused Ailes of propositioning her, creating a hostile work environment, and terminating her when she rebuffed his advances and complained about the behavior.

But, like many professionals, Carlson's contract included a clause that requires her to bring any disputes to secret arbitration. Could her lawyer's clever pleading allow her to get around this obstacle?

Want to Avoid an Arbitration Clause? Don't Sue the Company

Carlson's complaint included plenty of accusations about the Fox News workplace. Her suit even called out her former co-host, Steve Doocy, who she says "generally attempt[ed] to put her in her place by refusing to accept and treat her as an intelligent and insightful female journalist rather than a blond female prop."

But Carlson didn't name Fox as a defendant in her suit, as many commentators noted at the time. It was directed solely at Ailes. And that, Ailes attorneys say, is simply an attempt to avoid the terms of her contract with Fox News.

In a filing in New Jersey federal court last Friday, Ailes' attorneys sought to compel arbitration and stay Carlson's suit, which is currently pending in New Jersey Superior Court. They write:

In a transparent attempt to evade the Agreement and her contractual commitment to arbitrate, Plaintiff named only Mr. Ailes as a defendant in this action, rather than naming Fox News as a defendant as well. At the same time, however, she could not avoid identifying Mr. Ailes by his corporate title, "the Chairman and CEO of Fox News." Such gamesmanship does not permit Plaintiff to file in the Superior Court and publicly engage in a "tar and feather" campaign against Mr. Ailes.

Fox Contract Has Nothing to Do With Ailes, Carlson's Lawyers Say

Nancy Erika Smith and Martin Hyman, the attorneys representing Carlson, obviously disagree with Ailes' characterization. Carlson's contract has virtually nothing to do with Ailes' individually, they assert. "Gretchen never agreed to arbitrate anything with Mr. Ailes," they said in a statement, "and the contract on which he relies does not mention him and is not signed by him. Gretchen intends to fight for her right to a public jury trial, a right protected by the discrimination laws and our Constitution."

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