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Harassment claims against Fox News belong in federal court - 2nd Circ

4 minute read

A Fox News channel sign is seen outside the News Corporation building in New York City, U.S. REUTERS/Shannon Stapleton

  • Federal judge must decide if Andrea Tantaros' case should be arbitrated under federal law
  • Tantaros had cited NY law barring mandatory arbitration in harassment cases
  • Tantaros claims Fox News was a 'sex-fueled cult' when she worked there

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(Reuters) - A U.S. appeals court on Friday rejected former Fox News host Andrea Tantaros' claim that her bid to keep sexual harassment allegations against the network out of arbitration belongs in state court, saying a federal judge must first decide whether the claims can be arbitrated under federal law.

A 2nd U.S. Circuit Court of Appeals panel in a 2-1 decision said that while Tantaros' harassment claims against late Fox News CEO Roger Ailes and other individuals arise under New York state law.

A 2019 New York law adopted in the wake of the #MeToo movement bars mandatory arbitration of sexual harassment and discrimination claims, "except where inconsistent with federal law." That requires federal courts to determine at the outset whether a case must be arbitrated under the FAA, the 2nd Circuit majority said.

Tantaros' lawyer, Bruce Fein, said the ruling will effectively bar New York state courts from interpreting the 2019 law designed to aid victims of discrimination.

Employers accused of harassment and retaliation "will be able to remove cases involving all forms discrimination to federal court as a tactic to forum shop, causing costly delay and undue burden on victims and denying plaintiffs their rightful choice of forum to have their claims heard," Fein said in an email.

Fox News in a statement provided by a spokesperson said: “After five years of litigation and seven different sets of counsel, Andrea Tantaros has yet to advance her baseless claims. We will file a motion to dismiss her lawsuit.” The New York-based network is represented by Kirkland & Ellis and Jones Day.

Tantaros in a 2016 lawsuit filed in state court claimed she was taken off the air that year in retaliation for rebuffing Ailes' advances and complaining to top officials at Fox News including former co-president William Shine. She said Ailes had made numerous comments about her appearance, and that the network "operates like a sex-fueled, Playboy Mansion-like cult."

Ailes, who died in 2017, denied her allegations, and Fox News has denied wrongdoing.

A state judge in 2017 sent the lawsuit to arbitration, citing an arbitration agreement Tantaros had signed with the network.

In 2019, after New York's ban on mandatory arbitration took effect, Tantaros filed a petition in state court seeking an injunction against continuing arbitration of her claims.

Fox News removed the case to federal court in Manhattan, and U.S. District Judge Andrew Carter last year rejected Tantaros' bid to remand to state court.

Tantaros in her appeal claimed that because the application of the FAA was merely a defense by Fox, the key issue was whether the 2019 state law barred arbitration of her claims, and that was for a state judge to decide.

But the 2nd Circuit majority on Friday said the state law placed the burden on plaintiffs to plead that their claims are consistent with the FAA. And since that implicates a substantial issue under federal law, Fox News properly removed the case to federal court, Circuit Judge John Walker wrote, joined by Circuit Judge Jose Cabranes.

Circuit Judge Richard Wesley in dissent said it was far from clear that the text of the state law placed the burden on plaintiffs rather than on defendants to prove inconsistency with the FAA, and that the New York Court of Appeals, the state's highest court, should have a chance to weigh in.

"Requiring plaintiffs to plead a broad matter of law in the negative – that their claim is not inconsistent with federal law - strikes me as overly burdensome and contrary to the statute’s general spirit and purpose," Wesley wrote.

The case is Tantaros v. Fox News Network LLC, 2nd U.S. Circuit Court of Appeals, No. 20-3413.

For Tantaros: Bruce Fein of Fein & DelValle

For Fox News: C. Harker Rhodes of Kirkland & Ellis

Read more:

Former anchor says Fox News a 'sex-fueled cult' in harassment lawsuit

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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