FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO.

154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
--------------------------------------------------- x
JESSICA GOLLOHER, :
:
Plaintiff, :
:
- against - :
TWENTY-FIRST CENTURY FOX, INC., Index No. 154148/2017
:
FOX NEWS NETWORK LLC, HANK :
WEINBLOOM, in his individual and :
professional capacities, and MITCH DAVIS, in :
his individual capacities, :
:
Defendants. :
:
--------------------------------------------------- x

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS

MOTION TO DISMISS THE AMENDED COMPLAINT OR, IN THE ALTERNATIVE,
TO STAY THE ACTION AND COMPEL ARBITRATION

Andrew J. Levander
Linda C. Goldstein
Nicolle L. Jacoby
Matthew L. Mazur
DECHERT LLP
1095 Avenue of the Americas
New York, NY 10036-6797
Tel.: (212) 698-3500

Attorneys for Defendants Twenty-First

Century Fox, Inc., Fox News Network, LLC,
Hank Weinbloom and Mitch Davis

1 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

TABLE OF CONTENTS

INTRODUCTION ......................................................................................................................... 1
BACKGROUND AND FACTUAL ALLEGATIONS ................................................................. 2
A. Plaintiffs Employment and Employment Agreement........................................... 2
B. Plaintiffs Allegations of Discrimination and Retaliation ..................................... 4
1. Allegations of Discrimination while Plaintiff Resided and Worked
in Russia..................................................................................................... 5
2. Allegations of Discrimination while Plaintiff Resided and Worked
in Israel....................................................................................................... 5
3. An Allegedly Offensive Remark During the Brief Period Plaintiff
Worked in New York City......................................................................... 7
4. Allegations of Retaliation while Plaintiff Resided and Worked in
Israel........................................................................................................... 7
ARGUMENT................................................................................................................................. 8
I. PLAINTIFFS CLAIMS PURSUANT TO THE NYSHRL AND THE NYCHRL
FAIL FOR LACK OF SUBJECT MATTER JURISDICTION ........................................ 8
A. Plaintiffs Allegations of Discrimination and Retaliation While She Was
Working Abroad Do Not Support Subject Matter Jurisdiction ............................. 9
B. A Single Allegedly Offensive Remark in New York Cannot Establish
Subject Matter Jurisdiction .................................................................................. 12
II. PLAINTIFFS CLAIMS AGAINST DEFENDANTS MUST BE ARBITRATED ....... 14
A. Plaintiffs Arbitration Agreement is Enforceable Under the FAA ...................... 14
B. The Amended Complaint is Within the Scope of the Arbitration Clause in
the Employment Agreement ................................................................................ 15
C. Plaintiffs Claims Against Weinbloom and Davis Are Also Subject to
Arbitration............................................................................................................ 18
CONCLUSION............................................................................................................................ 21

2 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

TABLE OF AUTHORITIES

Cases

Arnold v. Arnold Corp.,

920 F.2d 1269 (6th Cir. 1990) .................................................................................................19

Benham v. eCommission Sols., LLC,

118 A.D.3d 605 (1st Dept 2014) ............................................................................................11

Clark v. Allen & Overy LLP,

35 Misc. 3d 1229(A) (Sup. Ct. N.Y. Cty. 2012)........................................................................3

Diamond Waterproofing Sys., Inc. v. 55 Liberty Owners Corp.,

4 N.Y.3d 247 (2005) ................................................................................................................14

DiBello v. Salkowitz,
4 A.D.3d 230 (1st Dept 2004) ..........................................................................................17, 19

Dunmire v. Lee,
14 Misc. 3d 813 (Sup. Ct. N.Y. Cty. 2006) .............................................................................19

Fletcher v. Kidder, Peabody & Co.,

81 N.Y.2d 623 (1993) ........................................................................................................16, 17

Fried v. LVI Servs., Inc.,

500 F. Appx 39 (2d Cir. 2012) ...............................................................................................11

Fruchtman v. City of N.Y.,

129 A.D.3d 500 (1st Dept 2015) ............................................................................................12

Gateson v. Aslk-Bank, N.V.,

No. 94-cv-5849, 1995 WL 387720 (S.D.N.Y. June 29, 1995) ................................................19

Germano v. Cornell Univ.,

No. 03-cv-9766, 2005 WL 2030355 (S.D.N.Y. Aug. 17, 2005)..............................................13

Hardwick v. Auriemma,
116 A.D.3d 465 (1st Dept 2014) ............................................................................................11

Highland HC, LLC v. Scott,

113 A.D.3d 590 (2d Dept 2014) .............................................................................................19

Hirschfeld Prods., Inc. v. Mirvish,

88 N.Y.2d 1054 (1996) ......................................................................................................18, 19

- ii -

3 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

Hoffman v. Parade Publns,

15 N.Y.3d 285 (2010) ................................................................................................1, 9, 10, 11

Hong v. CJ CGV Am. Holdings, Inc.,

166 Cal. Rptr. 3d 100 (Cal. 2013)............................................................................................14

In re Ball (SFX Broad. Inc.),

236 A.D.2d 158 (3d Dept 1997) .............................................................................................18

Kellman v. Whyte,
129 A.D.3d 418 (1st Dept 2015) ............................................................................................20

Kosarin-Ritter v. Mrs. John L. Strong, LLC,

117 A.D.3d 603 (1st Dept 2014) ............................................................................................12

La Cara Mia Bar Lounge, Inc. v. Great Locations, Inc.,

22 Misc. 3d 1107(A) (Sup. Ct. Bronx Cty. 2009)......................................................................3

Lambui v. Collins,
No. 14-cv-6457, 2015 WL 5821589 (E.D.N.Y. Sept. 30, 2015) .............................................13

Letizia v. Prudential Bache Sec., Inc.,

802 F.2d 1185 (9th Cir. 1986) .................................................................................................19

Massaro v. Dept of Educ.,

121 A.D.3d 569 (1st Dept 2014) ............................................................................................12

N.J.R. Assocs. v. Tausend,

19 N.Y.3d 597 (2012) ..............................................................................................................14

Powers v. Fox Television Stations, Inc.,

923 F. Supp. 21 (S.D.N.Y. 1996) ............................................................................................18

Prima Paint Corp. v. Flood & Conklin Mfg. Co.,

388 U.S. 395 (1967).................................................................................................................16

Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

7 F.3d 1110 (3d Cir. 1993).......................................................................................................19

Ragone v. Atl. Video at the Manhattan Ctr.,

595 F.3d 115 (2d Cir. 2010).....................................................................................................20

Roby v. Corp. of Lloyds,

996 F.2d 1353 (2d Cir. 1993)...................................................................................................18

Salvatore v. KLM Royal Dutch Airlines,

No. 98-cv-2450, 1999 WL 796172 (S.D.N.Y. Sept. 30, 1999) ...............................................13

- iii -

4 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

Shah v. Wilco Sys., Inc.,

27 A.D.3d 169 (1st Dept 2005) ..............................................................................................11

Smith Barney, Harris Upham & Co. v. Luckie,

85 N.Y.2d 193 (1995) ..............................................................................................................14

Smith Barney Shearson Inc. v. Sacharow,

91 N.Y.2d 39 (1997) ................................................................................................................14

South Huntington Jewish Ctr., Inc. v. Heyman,

282 A.D.2d 684 (2d Dept 2001) .............................................................................................17

State v. Philip Morris, Inc.,

30 A.D.3d 26 (1st Dept 2006), affd, 8 N.Y.3d 574 (2007) ...................................................16

Tantaros v. Fox News Network, LLC,

Index No. 157054-2016 (Sup. Ct. N.Y. Cty. Feb. 15, 2017) .............................................18, 20

Tong v. S.A.C. Capital Management, LLC,

52 A.D.3d 386 (1st Dept 2008) ..............................................................................................17

Varley v. Tarrytown Assocs., Inc.,

477 F.2d 208 (2d Cir. 1973).....................................................................................................14

Verizon N.Y. Inc. v. Broadview Networks, Inc.,

5 Misc. 3d 346 (Sup. Ct. N.Y. Cty. 2004) ...............................................................................15

Statutes/Rules

CPLR 3211..............................................................................................................................1, 13

CPLR 7501..................................................................................................................................15

CPLR 7503..............................................................................................................................1, 18

Federal Arbitration Act, 9 U.S.C. 1 et seq. .......................................................................1, 14, 15

New York State Human Rights Law, N.Y. Exec. Law 290 et seq. ........................................1, 10

New York City Human Rights Law, N.Y.C. Admin. Code 8-101 et seq. ..............................1, 10

- iv -

5 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

Defendants Twenty-First Century Fox, Inc. (21CF), Fox News Network, LLC (Fox

News), Hank Weinbloom and Mitch Davis (together, Defendants) respectfully submit this

memorandum of law in support of their motion to dismiss the Amended Complaint of plaintiff

Jessica Golloher (Plaintiff), with prejudice, pursuant to Section 3211 of the New York Civil

Practice Law and Rules (CPLR) or, alternatively, to stay the action and compel arbitration,

pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq., and Section 7503 of the

CPLR.

INTRODUCTION

Plaintiff lives and works as a radio journalist in Jerusalem, Israel. In this action, she

invokes the New York State Human Rights Law, N.Y. Exec. Law 290, et seq. (NYSHRL),

and the New York City Human Rights Law, N.Y.C. Admin. Code 8-101, et seq.

(NYCHRL), to assert claims of employment discrimination and retaliation. The claims are

meritless, but more importantly for this motion, they are procedurally barred for two reasons.

First, a non-resident plaintiff cannot assert claims under the NYSHRL or the NYCHRL

unless the impact of the alleged discrimination was felt in the State or the City of New York,

respectively. Hoffman v. Parade Publns, 15 N.Y.3d 285, 29091 (2010). Here, Plaintiff alleges

that, while she was living and working in Russia and Israel, she experienced gender

discrimination. She also alleges thatwhile still living and working in Israelher employment

was terminated. Nowhere does she claim that the alleged discrimination had the required impact

in New York.

In response to Defendants motion to dismiss her original Complaint for lack of subject

matter jurisdiction (Notice of Motion, June 21, 2017, NYSCEF No. 14), Plaintiff filed the

Amended Complaint, asserting for the first time that, although she was physically working

abroad, she was somehow based in New York City. But, even assuming that Plaintiff

6 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

maintained significant contact with her New York-based employer, the Amended Complaint still

fails to allege that Plaintiff felt the impact of gender discrimination or retaliation within the

geographical boundaries of either the State or City of New York. The Amended Complaint must

therefore be dismissed for lack of subject matter jurisdiction.

Second, even if this Court had subject matter jurisdiction over her claims, Plaintiff agreed

to submit them to arbitration. Plaintiffs employment agreement with Fox News includes a

broad arbitration clause providing that any controversy, claim or dispute arising out of or

relating to this Agreement or [Plaintiffs] employment shall be brought before a mutually

selected three-member arbitration panel and held in New York City in accordance with the rules

of the American Arbitration Association then in effect. The Amended Complaint does not even

purport to assert that this clause does not govern her claim of employment discrimination. If the

Court does not dismiss the Amended Complaint outright, Plaintiff must be compelled to arbitrate

her claims.

BACKGROUND AND FACTUAL ALLEGATIONS

A. Plaintiffs Employment and Employment Agreement

Between 2008 and 2014, Plaintiff worked as a freelance radio reporter based in Moscow,

Russia.1 Am. Compl. 20, 21.2 In August 2014, Fox News hired Plaintiff to serve as its

Middle East/North Africa correspondent. Am. Compl. 22, 24. Plaintiff signed a three-year

employment agreement commencing on August 4, 2014 (the Employment Agreement). The

Employment Agreement includes a broad and unambiguous arbitration clause:

1
Unless otherwise stated, the facts described in this Memorandum are drawn from the Amended Complaint.
Defendants dispute the allegations set forth in the Amended Complaint, but assume them to be true for purposes of
this Memorandum, except where they relate to subject matter jurisdiction.
2
Plaintiffs Amended Complaint, filed June 30, 2017, is annexed as Exhibit 1 to the Affirmation of
Samantha N. Rosa (Rosa Affirmation). Plaintiffs original Complaint, filed May 4, 2017, is annexed as Exhibit 2
to the Rosa Affirmation.

-2-

7 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

Any controversy, claim or dispute arising out of or relating to this

Agreement or Performers employment shall be brought before a mutually
selected three-member arbitration panel and held in New York City in
accordance with the rules of the American Arbitration Association then in
effect.

Ex. 3 14.

The Employment Agreement also provided that Plaintiff will be based initially in New

York City, and will re-locate to Jerusalem in January 2015 (or at another time by mutual

agreement of the parties). Ex. 3 1.3 Except for the transitional period between August and

December 2014, Plaintiff was expected to be based permanently outside of the United States.

Ex. 3 3.4, 3.5 & 3.6. Plaintiffs original Complaint confirmed that, after a few months in New

York, Plaintiff indeed moved to Jerusalem in January 2015 and has remained there since that

time. Compl. 24. And documentary evidence supports what the original Complaint

conceded: when Plaintiff moved to Jerusalem, she did not retain a residence in New York but

instead claimed residency in Tulsa, Oklahoma.4 In her Amended Complaint, however, Plaintiff

asserts for the first time that, from 2008 to 2014, she was [b]ased out of Moscow and New York

City, and that, after January 2015, she was dispatched to work remotely from [Fox Newss]

Jerusalem Bureau but was and remains employed by Foxs New York City office. Am.

Compl. 21, 24 (emphasis added); see also Am. Compl. 26 (she was still working out of

Foxs New York City office but physically reporting from the Middle East).

3
All exhibits, cited Ex. __, are annexed to the Rosa Affirmation.
4
Specifically, Plaintiff affirmed under penalty of perjury that she was a resident of Oklahoma in a Voter
Registration and Absentee Ballot Request that she sent to a member of Fox Newss payroll department for the
purpose of updating her tax status. See Ex. 4 (voter registration); Ex. 5 (Email from Jessica Golloher to Tichaona
Perinchief-Brown (Sept. 29, 2016, 10:13 AM)). In a related email to a member of Fox Newss human resources
department, Plaintiff stated that her Oklahoma residency was effective December 17, 2014. Ex. 5 (Email from
Jessica Golloher to Liza Cohen (Sept. 30, 2016, 5:53 AM)). See also La Cara Mia Bar Lounge, Inc. v. Great
Locations, Inc., 22 Misc. 3d 1107(A), at *5 (Sup. Ct. Bronx Cty. 2009) (Some documents evidencing residence are
bank accounts, voter registration records, library cards, and employment records.); Clark v. Allen & Overy LLP, 35
Misc. 3d 1229(A) (Sup. Ct. N.Y. Cty. 2012).

-3-

8 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

Plaintiff does not allege that she set foot in Foxs New York City office after moving to

Jerusalem in January 2015. Instead, she tries to establish a connection to New York by

repeatedly pointing to signs that her employer was located in New York. Thus, she alleges that,

while she lived and worked in Jerusalem, she reported to and received assignments from Davis

and Weinbloom, who worked at Foxs corporate headquarters in New York. Am. Compl.

2425. She alleges that her work was supervised and reviewed in the New York City office

and sent through servers and accounts in the New York City office. Am. Compl. 3233.

Plaintiff also allegedly maintained herNew York City cell phone number, although she does

not assert that she used the phone in New York, a telephone number and voicemail at Foxs

New York City office, although she does not allege that used the phone or accessed the email

from New York, and an address to receive work-related mail [at] Foxs New York City

office, although she does not claim that she received any mail while in New York. Am. Compl.

2729. She claims to have been told that her business cards should reflect that she is based

out of Foxs New York City office, although she does not allege that they did. Am. Compl.

34. And while she alleges that at all times during her employment, her e-mail signature

block reflected her work address as Foxs New York City office, that allegation is

demonstrably false.5 Am. Compl. 30.

B. Plaintiffs Allegations of Discrimination and Retaliation

In the Amended Complaint, Plaintiff alleges that Defendants subjected her to disparate

treatment based on her gender and retaliated against her for attempting to report discrimination.

5
Documents show that Plaintiffs emails indicated that she was the National Correspondent New York
only during the brief period in late 2014 when she actually worked in New York City. Once she moved to
Jerusalem, in January 2015, Plaintiff began using a new signature block describing her as the Middle East and
North Africa correspondent. See Ex. 6 (Email from Jessica Golloher to Natasha Beekhary (Dec. 16, 2014, 1:50
PM) with National Correspondent New York signature); Ex. 6 (Email from Jessica Golloher to Ying Wei (Jan. 15,
2015, 9:35 AM) reflecting her relocation to Jerusalem, her Oklahoma residence, and a Middle East and North
Africa Correspondent signature). Neither email signature sets forth a New York address.

-4-

9 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

Except for a single allegedly offensive remark in August 2014, every instance of what Plaintiff

characterizes as discriminatory or retaliatory conduct occurred while Plaintiff was working and

residing outside of the United States.

1. Allegations of Discrimination while Plaintiff Resided and

Worked in Russia

Plaintiff worked as a freelance correspondent based out of Moscow from 2008 through

2014. Am. Compl. 20, 21. In early 2014, Plaintiff alleges that she was subjected to disparate

treatment relative to her male peer, Simon Owen, when Owen and Plaintiff were dispatched to

Sochi, Russia, to cover the 2014 Winter Olympics. Specifically, Plaintiff alleges that

Weinbloom and Davis designated Owen, and not Plaintiff, as the lead reporter for the Sochi

games. See Am. Compl. 3839. Plaintiff also alleges that Defendants accorded Owen

preferential treatment during the Sochi Olympics while marginalizing Plaintiff and assigning her

to report on events she deemed frivolous. Am. Compl. 4048.

In March 2014, after the conclusion of the Sochi Olympics, Plaintiff alleges that Davis

asked her to provide recent photographs of herself while reporting. Plaintiff alleges that she

complied with the request and sent two photographs to Davis, who allegedly made disparaging

comments about them. Am. Compl. 5657. This alleged exchange between Plaintiff and

Davis occurred while Plaintiff was still residing in Moscow. See Am. Compl. 2123. All of

these allegations also appeared in the original Complaint. Compl. 2023, 2829, 3038, 46

47.

2. Allegations of Discrimination while Plaintiff Resided and

Worked in Israel

All but one of Plaintiffs remaining claims of disparate treatment and retaliation concern

incidents that are alleged to have occurred after January 2015, when Plaintiff relocated to

Jerusalem, and that sole instance was not asserted in the original Complaint. Plaintiffs original

-5-

10 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

complaint alleged that a Fox News Radio anchor, Dave Anthony, regularly dictated word-for-

word what Plaintiff should say in broadcasts and made relentless edits to her scripts. Compl.

4041. Plaintiff claimed that she complained about such discriminatory micromanagement

to Weinbloom and Davis in or around January 2016, but that Weinbloom and Davis failed to

take any remedial action. Compl. 41. These allegations also appear in the Amended

Complaint. Am. Compl. 5052.

Similarly, the original Complaint alleged that in or around April 2016, while Plaintiff was

in Saudi Arabia for an assignment, Weinbloom asked Plaintiff to take a photograph of herself in

a burqa. Compl. 48. Plaintiff alleged that she complied and sent the photograph to Weinbloom

and that he responded You are totally ROCKING that Bur[q]a! Compl. 48. Plaintiff further

alleged that in January 2017, while she was on vacation at an unnamed location, breaking news

occurred in Jerusalem which allegedly prompted Weinbloom to write to Plaintiff Youd better

get your butt back there soon! Compl. 49. These allegations also appear in the Amended

Complaint. Am. Compl. 6061. Plaintiff does not allege that she was on vacation in New

York when she received this email.

Plaintiff further alleged that she was subjected to disparate treatment when her requests to

travel to foreign countries to report on stories were denied for what Plaintiff considers to be

pretextual reasons. Specifically, Plaintiff alleged that in February 2017, Davis and Weinbloom

rejected a pitch for a story that would require Plaintiff to travel to Afghanistan, citing safety

concerns in Afghanistan. Compl. 5152. Plaintiff alleged that another Fox News division,

FOX TV, sent a male reporter to Afghanistan to cover the story she had pitched. Compl. 53.

Plaintiff also alleged that Weinbloom and Davis dispatched Owen from London to Pakistan for a

story, even though Plaintiff was then residing in Jerusalem and was allegedly ready and willing

-6-

11 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

to report on the story from Pakistan. Compl. 54; see also Compl. 55 (alleging that Weinstein

and Davis rejected Plaintiffs proposal that she report on a story out of Moscow). These

allegations also appear in the Amended Complaint. Am. Compl. 6367. Plaintiff does not

allege that she was in New York at the time any of these occurrences are alleged to have taken

place.

3. An Allegedly Offensive Remark During the Brief Period

Plaintiff Worked in New York City

In her Amended Complaint, Plaintiff added a new allegation designed to bootstrap her

claims within the NYSHRL and NYCHRL: she alleges that, in August 2014, Davis announced

to the entire newsroom in New York City that he had added a new setting to Ms. Gollohers

audio equipment that would lower the pitch of her voice, which apparently was too high and

grating to Daviss superiors. Am. Compl. 58. Plaintiff says she was mortified at the

announcement, although she does not assert that the setting was inappropriate or that she

complained to anyone about it. Am. Compl. 59. This single remark is the only alleged

discriminatory act that is purported to have occurred while Plaintiff worked out of New York.

4. Allegations of Retaliation while Plaintiff Resided and

Worked in Israel

Plaintiff has also alleged that Defendants retaliated against her for contacting a lawyer at

Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss), a law firm retained by 21CF to

investigate claims of employment discrimination asserted by employees of Fox News.

Specifically, Plaintiff alleges that she sent an email to Paul Weiss on April 17, 2017, stating that

Plaintiff was having some issues at Fox and requesting to arrange a call. Am. Compl. 85

86. According to Plaintiff, within 24 hours of sending this email, Plaintiff received an email

from Weinbloom asking Plaintiff to call Mitch [Davis]. Am. Compl. 91. When Plaintiff

called Davis, Plaintiff alleges that Davis advised her that she would be terminated effective

-7-

12 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

August 2017 due to budgetary concerns. Am. Compl. 9294. Plaintiff also alleges that she

has experienced retaliation and other disparate treatment following the filing of this lawsuit in

the form of fewer assignments and unwelcome comments by her colleagues in Jerusalem. Am.

Compl. 96108.

ARGUMENT

Plaintiffs claims pursuant to the NYSHRL and the NYCHRL must be dismissed for lack

of subject matter jurisdiction because Plaintiff, a non-resident, has not alleged that she

experienced discriminatory or retaliatory treatment while living or working in the State or City of

New York. Furthermore, even if this Court had subject matter jurisdiction, the Employment

Agreement that Plaintiff signed requires that her claims be brought in arbitration.

I. PLAINTIFFS CLAIMS PURSUANT TO THE NYSHRL AND THE NYCHRL FAIL

FOR LACK OF SUBJECT MATTER JURISDICTION

Plaintiff, a non-resident, attempts to manufacture jurisdiction under the NYSHRL and

NYCHRL by asserting that, although she physically lived and worked abroad, she was

somehow based in New York City. Thus, in response to Defendants motion to dismiss her

original Complaint for lack of subject matter jurisdiction, Plaintiff alleges in an Amended

Complaint that she reported to supervisors in New York, maintained telephone numbers and

addresses in New York, and submitted work through computer servers in New York. Such

allegations, however, merely confirm that her employer, Fox News, was located in New York.

They do not establish subject matter jurisdiction for purposes of the NYSHRL and NYCHRL,

which require that Plaintiff plead and prove that she felt the impact of discrimination within

the geographic boundaries of the State and City of New York, respectively. Here, with the

exception of a single, non-actionable remark in August 2014, Plaintiff has failed to allege that

any discriminatory or retaliatory conduct by Defendants took place when she was physically

-8-

13 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

present in the State or City of New York. Accordingly, Plaintiff does not have any recourse

under either the NYSHRL or the NYCHRL.

A. Plaintiffs Allegations of Discrimination and Retaliation While She Was

Working Abroad Do Not Support Subject Matter Jurisdiction

In Hoffman v. Parade Publications, the Court of Appeals held that, in order to sustain a

discrimination claim under the NYCHRL and the NYSHRL, nonresidents of the city and state

must plead and prove that the alleged discriminatory conduct had an impact within those

respective boundaries. 15 N.Y.3d at 289. In that case, the plaintiff employee lived in Georgia

and worked in the Atlanta office of an employer headquartered in New York. Nonetheless, he

sought to sue the employer for age discrimination in violation of the NYCHRL and the

NYSHRL. Id. at 288. The employee alleged that the employers president called him from the

companys New York City headquarters to inform him that the Atlanta office would soon be

closed and that his employment was being terminated. Id. In opposition to the defendants

motion to dismiss for lack of subject matter jurisdiction, the employee asserted various

connections to New York City, just as Plaintiff does here, including that he attended quarterly

business meetings there, that his work group was managed from there, that all corporate

contracts were negotiated there, and that the decision to terminate plaintiff was made and

executed there. Id.

The Court of Appeals determined that the employees claims pursuant to the NYCHRL

and the NYSHRL must be dismissed for lack of subject matter jurisdiction because he had failed

to state a claim that the alleged discriminatory conduct had any impact in either of those

locations. Id. at 292. The Court found that the statutory language of the NYCHRL and the

NYSHRL makes clear that the laws were intended to provide redress only to persons who live or

-9-

14 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

work in New York City or New York State, respectively. Id. at 28992.6 Accordingly, the

proper inquiry for determining subject matter jurisdiction pursuant to the NYCHRL and

NYSHRL is to consider where the impact of [the discriminatory] decision is felt. Id. at 291.

The Court of Appeals expressly rejected the rule that had been applied by the Appellate

Divisionwhich required a plaintiff only to allege that the decision to terminate was made in

New Yorkexplaining that such a rule is impractical, would lead to inconsistent and arbitrary

results, and expands NYCHRL protections to nonresidents who have, at most, tangential contacts

with the city. Id. By contrast, the impact requirement is relatively simple for courts to apply

and litigants to follow, leads to predictable results, and confines the protections of the NYCHRL

to those who are meant to be protectedthose who work in the city. Id.

In this case, Plaintiff has failed to allege that any of the conduct she complains of had the

required impact in New York. Plaintiffs discrimination claims rest almost entirely on alleged

mistreatment of Plaintiff while she was living and working abroad. See Am. Compl. 3848

(discrimination alleged to have occurred while Plaintiff was living and working in Moscow);

5657 (same); 5152 (discrimination alleged to have occurred while Plaintiff was living

and working in Jerusalem); 6267 (same); 60 (discrimination alleged to have occurred while

Plaintiff was working in Saudi Arabia). The same defect exists with respect to Plaintiffs claim

that, in April 2017, Fox News decided to terminate her employment in supposed retaliation for

reaching out to Paul Weiss. Notwithstanding her conclusory assertions that her employment was

6
The Courts decision rests on the text of the statutes. See N.Y.C. Admin. Code 8-101 (providing that
[i]n the city of New York . . . there is no greater danger to the health, morals, safety and welfare of the city and its
inhabitants than the existence of groups prejudiced against one another . . . .) (emphasis added); N.Y. Exec. Law
290(2) (It shall be deemed an exercise of the police power of the state for the protection of the public welfare,
health and peace of the people of this state, and in fulfillment of the provisions of the constitution of this state
concerning civil rights.) (emphasis added); N.Y. Exec. Law 290(3) (providing that the State of New York has
the responsibility to act to assure that every individual within [New York State] is afforded an equal opportunity to
enjoy a full and productive life, and that failure to afford equal opportunity threatens the peace, order, health,
safety and general welfare of the state and its inhabitants) (emphasis added).

- 10 -

15 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

based in New York, Plaintiff has lived and worked in Jerusalem since 2015 (Am. Compl.

14, 24), and her contract states that she was to be based permanently outside of the United

States. Ex. 3 3.4, 3.5, 3.6. Effective December 14, 2014, she claimed that her legal U.S.

residence was in Tulsa, Oklahoma. Exs. 4, 5. Because the impact of the alleged discrimination

and retaliation was not felt in New York, Plaintiffs claims pursuant to the NYCHRL and the

NYSHRL fail for lack of subject matter jurisdiction.

In her Amended Complaint, Plaintiff attempts to show that, although she was

physically working abroad when she allegedly experienced discrimination, she was still

somehow based in New York City. But her physical location is what matters. See Benham v.

eCommission Sols., LLC, 118 A.D.3d 605, 606 (1st Dept 2014) (Whether New York courts

have subject matter jurisdiction over a nonresident plaintiffs claims under the HRLs turns

primarily on her physical location at the time of the alleged discriminatory acts, and not on her

taxpayer status.); Hardwick v. Auriemma, 116 A.D.3d 465, 467 (1st Dept 2014) (Even if the

decision to modify [plaintiffs] assignment was made within the Citys boundaries, the

discriminatory acts alleged did not occur within the City or State of New York, but in London

where she claims she was relegated to inferior tasks not commensurate with her usual

assignments.).

Plaintiffs routinely try to claim the protection of the NYCHRL and NYSHRL by pointing

to their communications with New York-based supervisors, and just as routinely, courts reject

those efforts. See, e.g., Hoffman, 15 N.Y.3d at 288; Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 175

(1st Dept 2005) (reversing denial of summary judgment against plaintiff employed by New

York defendant but assigned to client site in New Jersey); see also Fried v. LVI Servs., Inc., 500

F. Appx 39, 42 (2d Cir. 2012) (summary order) (allegations that plaintiff frequently

- 11 -

16 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

communicated with defendants New York headquarters and attended meetings in New York

City were insufficient to establish the necessary impact under the NYCHRL). Plaintiffs

claims here that the communications she sent from Israel were routed through servers in New

York, and that the communications she sent from Israel listed New York addresses and

telephone numbers do not support a claim that the alleged discrimination had an impact in

New York.

B. A Single Allegedly Offensive Remark in New York Cannot Establish Subject

Matter Jurisdiction

Plaintiffs allegation of a single allegedly offensive remark in the New York newsroom in

August 2014 is likewise insufficient to establish subject matter jurisdiction. To begin with, even

assuming that Davis announced to the entire newsroom that he had added a new setting to Ms.

Gollohers audio equipment that would lower the pitch of her voice and that an experienced

radio reporter would feel mortification as a result of a single comment about the pitch of her

voice (Am. Compl. 5859), Plaintiff has alleged no more than [a] petty slight[] which

cannot support a claim of discrimination. Massaro v. Dept of Educ., 121 A.D.3d 569, 570 (1st

Dept 2014) (quoting Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 79-80 (1st Dept 2009));

see also Fruchtman v. City of N.Y., 129 A.D.3d 500, 501 (1st Dept 2015) (stray derogatory

remarks did not constitute evidence of discrimination); Kosarin-Ritter v. Mrs. John L. Strong,

LLC, 117 A.D.3d 603, 604 (1st Dept 2014) (a comment about plaintiffs hair and a comment

about the companys going young were merely isolated remarks that were nothing more

than petty slights and trivial inconveniences). Nor is there even any basis to conclude that the

remark had anything to do with Plaintiffs gender as opposed to the sound of her voice.

More importantly, multiple courts have rejected similar attempts to expand the

geographic reach of New Yorks antidiscrimination laws based on isolated instances of alleged

- 12 -

17 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

misconduct occurring within the boundaries of New York City. See, e.g., Lambui v. Collins, No.

14-cv-6457, 2015 WL 5821589, at *5-6 (E.D.N.Y. Sept. 30, 2015) (dismissing NYCHRL claims

where plaintiff worked on Long Island, notwithstanding allegations of sexual advances during a

trip to New York City and meetings in New York City that led to plaintiffs termination);

Germano v. Cornell Univ., No. 03-cv-9766, 2005 WL 2030355, at *4-6 (S.D.N.Y. Aug. 17,

2005) (dismissing NYCHRL claims where plaintiff worked on Long Island, notwithstanding

alleged comments about plaintiffs age during conversations in New York City); Salvatore v.

KLM Royal Dutch Airlines, No. 98-cv-2450, 1999 WL 796172, at *15-17 (S.D.N.Y. Sept. 30,

1999) (dismissing NYCHRL claims where plaintiffs worked in Westchester, notwithstanding

sexual advance and derogatory remarks made in New York City). Any other result would

arbitrarily and improperly expand the protections of the NYSHRL and NYCHRL beyond what

the state and city legislatures intended.

* * *

Simply put, Plaintiff lived and worked outside New York City and New York State when

she was subjected to allegedly unlawful gender discrimination and retaliation. As such, she

cannot avail herself of the protections of either the NYCHRL or the NYSHRL. Plaintiffs claims

must therefore be dismissed for lack of subject matter jurisdiction pursuant to CPLR

3211(a)(2).7 In addition, because Plaintiff has already amended her Complaint once as of

course and cannot establish subject matter jurisdiction over her claims, the Amended Complaint

should be dismissed with prejudice.

7
Defendants reserve the right to assert any and all defenses not raised in this motion, including, but not
limited to, a defense that Plaintiffs discrimination claims based on conduct alleged to have occurred more than three
years prior to the commencement of this action are barred by the statutes of limitations applicable to claims under
the NYSHRL and the NYCHRL.

- 13 -

18 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

II. PLAINTIFFS CLAIMS AGAINST DEFENDANTS MUST BE ARBITRATED

If this Court does not dismiss Plaintiffs claims for want of subject matter jurisdiction,

Plaintiff should be compelled to arbitrate. The Federal Arbitration Act provides that a contract

evidencing a transaction involving commerce to settle by arbitration a controversy thereafter

arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. 2. By

enacting the FAA, Congress established a policy favoring arbitration agreements, which is to be

advanced by rigorous judicial enforcement of arbitration agreements. Smith Barney, Harris

Upham & Co. v. Luckie, 85 N.Y.2d 193, 20001 (1995). Accordingly, New York courts

endeavor to interfere as little as possible with the freedom of consenting parties to submit

disputes to arbitration. Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39, 4950 (1997)

(internal quotations omitted).

A. Plaintiffs Arbitration Agreement is Enforceable Under the FAA

The Employment Agreement evidences a transaction involving commerce, and is

therefore subject to the FAA. 9 U.S.C. 2; see also Varley v. Tarrytown Assocs., Inc., 477 F.2d

208, 209 (2d Cir. 1973) (FAA applies to transactions involving interstate or foreign

commerce). Given the international scope of the Employment Agreement and Plaintiffs

employment, [i]t is unimaginable that, under modern precedents, such a transaction could be

found to have no effect on interstate or foreign commerce. N.J.R. Assocs. v. Tausend, 19

N.Y.3d 597, 605 (2012); see also Diamond Waterproofing Sys., Inc. v. 55 Liberty Owners Corp.,

4 N.Y.3d 247, 252 (2005) (FAA applied where out-of-state entities were involved in the

transaction); Hong v. CJ CGV Am. Holdings, Inc., 166 Cal. Rptr. 3d 100, 107 (Cal. 2013) (FAA

applied to stock purchase agreement involving a nationwide television network).

- 14 -

19 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

As noted above, the FAA provides that agreements to arbitrate shall be valid,

irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the

revocation of any contract. 9 U.S.C. 2. There are no grounds to revoke the Employment

Agreement; indeed, Plaintiffs claims are predicated on the employment relationship. Moreover,

as discussed below, Plaintiffs claims are clearly within the scope of the broad arbitration clause.

Plaintiffs claims must be, therefore, brought in arbitration.8

B. The Amended Complaint is Within the Scope of the Arbitration Clause in

the Employment Agreement

When considering a motion to compel arbitration under the FAA, a court must determine

(1) whether there exists a valid agreement to arbitrate at all . . . and if so, (2) whether the

particular dispute sought to be arbitrated falls within the scope of the arbitration agreement.

Verizon N.Y. Inc. v. Broadview Networks, Inc., 5 Misc. 3d 346, 349 (Sup. Ct. N.Y. Cty. 2004)

(citing Hartford Acc. and Indem. Co. v. Swiss Reins. Am. Corp., 246 F.3d 219, 226 (2d Cir.

2001)).

Here, it is indisputable that Plaintiff and Fox News have entered into a binding agreement

to arbitrate. The Employment Agreement contains an unambiguous and clearly marked

arbitration provision providing that [a]ny controversy, claim or dispute arising out of or relating

to this Agreement or Performers employment shall be brought before a mutually selected three-

member arbitration panel and held in New York City in accordance with the rules of the

American Arbitration Association then in effect. Ex. 3 14. This arbitration provision inures

8
The arbitration clause in the Employment Agreement is also enforceable under New York law, which, like
the FAA, embraces a policy favoring arbitration. See CPLR 7501 (A written agreement to submit any
controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the
justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter
judgment on an award. In determining any matter arising under this article, the court shall not consider whether the
claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.).

- 15 -

20 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

to the benefit of 21CF, which is the parent company of signatory Fox News, and is thus an

Affiliate as defined in the Standard Terms and Conditions incorporated into the Employment

Agreement. Ex. 3, Standard Terms and Conditions 14.1.

Moreover, Plaintiff cannot credibly deny that this dispute falls within the scope of the

arbitration clause. Where an arbitration provision contains expansive language such as arising

out of and relating to, courts appropriately construe them broadly. See, e.g., Prima Paint

Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 398 (1967); State v. Philip Morris, Inc., 30

A.D.3d 26, 31 (1st Dept 2006) (The terms arising out of, and most particularly relating to

certainly evince a broad arbitration clause.) (citations omitted), affd, 8 N.Y.3d 574 (2007). The

Amended Complaint is filled with allegations of occurrences arising out of or related to

Plaintiffs employment; indeed, the employment relationship is a necessary element of each of

the claims. Thus, in Plaintiffs own words, the essence of Plaintiffs discrimination claims is that

she has been den[ied] . . . equal terms and conditions of employment available to similarly-

situated male employees. Am. Compl. 120, 133. The same is true with respect to Plaintiffs

retaliation claims, which boil down to the allegation that Defendants decided to terminate

Plaintiffs employment because she had contacted Paul Weiss, allegedly to report her claims that

she had been discriminated against on the basis of her gender. Am. Compl. 8594. These are

quintessential disputes arising out of and relating to Plaintiffs employment, which must be

arbitrated pursuant to paragraph 14 of the Employment Agreement.

It is well established that statutory claims of employment discrimination and retaliation

are subject to arbitration. In Fletcher v. Kidder, Peabody & Co., 81 N.Y.2d 623 (1993), the

plaintiff had signed a U-4 Form containing a broad arbitration clause in connection with her

application for registration with various securities exchanges, which required plaintiff to submit

- 16 -

21 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

any disputes arising out of her employment to arbitration. Id. at 62930. When plaintiff, who

was African American, was terminated, she commenced an action in New York State Supreme

Court alleging that she had been discriminated against on the basis of her race in violation of the

NYSHRL. Id. at 630. The Court held that, under the FAA, plaintiff could be compelled to

arbitrate her state-law discrimination claims in accordance with the arbitration provision in her

U-4 Form. Id. at 638 (holding that the arbitration clause is fully enforceable in disputes that fall

within its terms, even where the underlying claim concerns an alleged breach of a local, State or

Federal law barring racial or gender discrimination).

Similarly, in Tong v. S.A.C. Capital Management, LLC, 52 A.D.3d 386 (1st Dept 2008),

the First Department held that claims of gender discrimination in violation of the NYCHRL and

the NYSHRL were arbitrable pursuant to an arbitration clause virtually identical to the one found

in the Employment Agreement. In Tong, the plaintiffs employment agreement provided for

arbitration of any dispute or controversy arising out of or relating to this agreement, the

interpretation thereof, and/or the employment relationship. Id. at 387. Concluding that all of

plaintiffs discrimination claims pursuant to the NYCHRL and the NYSHRL ar[ose] out of

events that occurred in the course of his employment by defendant, the First Department

affirmed the lower courts order compelling arbitration. Id.

Numerous other courts have held that NYCHRL and NYSHRL claims are arbitrable

pursuant to arbitration provisions analogous to the one that Plaintiff signed. See, e.g., DiBello v.

Salkowitz, 4 A.D.3d 230, 232 (1st Dept 2004) ([T]he enforceability of the arbitration

agreement is not affected by the statutory nature of the discrimination claims.); South

Huntington Jewish Ctr., Inc. v. Heyman, 282 A.D.2d 684, 685 (2d Dept 2001) (holding that

there are no public policy reasons for not enforcing anticipatory agreements to arbitrate

- 17 -

22 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

statutory employment discrimination claims arising under [the NYSHRL]); In re Ball (SFX

Broad. Inc.), 236 A.D.2d 158, 162 (3d Dept 1997) (compelling arbitration of pregnancy

discrimination claim under the NYSHRL); see also Powers v. Fox Television Stations, Inc., 923

F. Supp. 21, 24 (S.D.N.Y. 1996) (compelling arbitration of NYSHRL and NYCHRL claims

pursuant to term in employment agreement that [a]ll disputes and controversies . . . arising out

of or in connection with this agreement shall be determined by arbitration). Indeed, Justice

Cohen has recently compelled arbitration of sexual harassment and retaliation claims brought by

another Fox News employee who also had agreed to arbitrate all claims arising out of and

relating to her employment. See Tantaros v. Fox News Network, LLC, Index No. 157054-2016

(Sup. Ct. N.Y. Cty. Feb. 15, 2017) (transcript annexed as Ex. 7), at 36:1437:5.

In light of the broad and unambiguous arbitration provision in the Employment

Agreement, Plaintiff should be compelled to pursue her claims against Fox News and 21CF in

arbitration and this action should be dismissed or stayed pending the outcome of such arbitration.

See CPLR 7503(a) (providing that an order compelling arbitration shall operate to stay a

pending or subsequent action, or so much of it as is referable to arbitration).

C. Plaintiffs Claims Against Weinbloom and Davis Are Also Subject to

Arbitration

Plaintiffs claims against Defendants Weinbloom and Davis are likewise subject to

arbitration. The Court of Appeals recognizes that employees and agents of a company should be

afforded . . . the benefit of arbitration agreements entered into by their principals to the extent

that the alleged misconduct relates to their behavior as officers or directors or in their capacities

as agents of the corporation. Hirschfeld Prods., Inc. v. Mirvish, 88 N.Y.2d 1054, 1056 (1996);

see also Roby v. Corp. of Lloyds, 996 F.2d 1353, 1360 (2d Cir. 1993) ([E]mployees or

disclosed agents of an entity that is a party to an arbitration agreement are protected by that

- 18 -

23 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

agreement.); Letizia v. Prudential Bache Sec., Inc., 802 F.2d 1185, 1188 (9th Cir. 1986) (same);

Arnold v. Arnold Corp., 920 F.2d 1269, 1281 (6th Cir. 1990) (same); Pritzker v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 112122 (3d Cir. 1993) (same). Indeed, [a]cts by

employees of one of the parties to an agreement are equally arbitrable as acts of the principals as

long as the challenged acts fall within the scope of the agreement. Gateson v. Aslk-Bank, N.V.,

No. 94-cv-5849, 1995 WL 387720, at *5 (S.D.N.Y. June 29, 1995). This commonsense rule is

necessary to prevent plaintiffs from circumventing arbitration agreements by merely naming as

defendants non-signatory employees of a corporation that is a party to a binding arbitration

agreement. Hirschfeld Prods., 88 N.Y.2d at 1056.

Weinbloom and Davis are employees of Fox News. Am. Compl. 1819.

Furthermore, Plaintiffs discrimination and retaliation claims against Weinbloom and Davis are

based on allegations that they acted in their capacity as employees of Fox News and as Plaintiffs

supervisors. See Am. Compl. 21, 24 (alleging that Plaintiff reported to Weinbloom and Davis

at all relevant times). Such claims are plainly subject to the mandatory arbitration clause in the

Employment Agreement. See DiBello, 4 A.D.3d at 232 ([G]iven the employment-related nature

of the claims [under the NYSHRL and NYCHRL], Salkowitz, as an agent of Clear Channel, is

entitled to demand arbitration of the claims against him no less than Clear Channel is entitled to

demand arbitration of the claims against it.); Highland HC, LLC v. Scott, 113 A.D.3d 590, 594

(2d Dept 2014) ([T]he individual defendants, as officers and directors of PW Scott, are entitled

to enforce the arbitration clause to the extent that their alleged misconduct relates to their

behavior as agents of the professional corporation.); Dunmire v. Lee, 14 Misc. 3d 813, 816

(Sup. Ct. N.Y. Cty. 2006) (finding that claims against individual defendant based on his

- 19 -

24 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

supervisory responsibilities at Morgan Stanley were subject to the arbitration agreement between

plaintiff and Morgan Stanley); see also Tantaros, Ex. 7 at 37:622.

Plaintiffs claims against Weinbloom and Davis should be submitted to arbitration for the

additional reason that such claims are inextricably intertwined with Plaintiffs claims against

21CF and Fox News. [A] non-signatory to an arbitration agreement may compel a signatory to

that agreement to arbitrate a dispute where a careful review of the relationship among the

parties, the contracts they signed . . . and the issues that had arisen among them discloses that

the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the

agreement that the estopped party has signed. Ragone v. Atl. Video at the Manhattan Ctr., 595

F.3d 115, 12627 (2d Cir. 2010); see also Kellman v. Whyte, 129 A.D.3d 418, 418 (1st Dept

2015) (The arbitration clause in the operating agreement, which plaintiff signed, compels

plaintiff to arbitrate all of her claims, even her claims against nonsignatories to the agreement,

because plaintiffs claims are intertwined with the agreement.). Plaintiffs claims against the

corporate defendants are based almost entirely on the alleged actions (or alleged failures to act)

of Weinbloom and Davis. Fox News would be deprived of the benefits of the arbitration clause

that Plaintiff signed if she were permitted to press her claims against Weinbloom and Davis in

this court while her claims against 21CF and Fox News are addressed in arbitration.

- 20 -

25 of 26
FILED: NEW YORK COUNTY CLERK 07/20/2017 03:54 PM INDEX NO. 154148/2017
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/20/2017

CONCLUSION

For the reasons set forth above, Defendants respectfully request that the Court grant

Defendants motion to dismiss the Amended Complaint, with prejudice, for lack of subject

matter jurisdiction. In the alternative, if the Court determines that subject matter jurisdiction

exists, Defendants respectfully request that the Court enter an order compelling Plaintiff to

arbitrate her claims against Defendants pursuant to the unambiguous arbitration provision in her

Employment Agreement and staying this action pending a resolution in arbitration.

Dated: New York, New York. Respectfully submitted,

July 20, 2017
DECHERT LLP

By: /s/ Linda C. Goldstein

Andrew J. Levander
Linda C. Goldstein
Nicolle L. Jacoby
Matthew L. Mazur
1095 Avenue of the Americas
New York, NY 10036-6797
Tel.: (212) 698-3500

Attorneys for Defendants Twenty-First

Century Fox, Inc., Fox News Network,
LLC, Hank Weinbloom and Mitch Davis

- 21 -

26 of 26