;
Image: TRR

The sexual harassment case that LVMH’s Litigation Counsel and Vice President of Legal Affairs Andowah Newton filed against the luxury goods conglomerate in April, accusing it of “doing everything it could to bury” years of sexual harassment experienced by a female executive at its New York headquarters, is swiftly heating up. On the heels of LVMH asking a New York state court to stay the proceedings and compel arbitration given a provision in Newton’s 2014 employment contract requiring that “any disputes of any nature … be submitted to binding arbitration,” Newton’s counsel fired back with a memo in opposition to the luxury’s titan arbitration bid.

According to the July 29 filing from Newton’s counsel Carolynn K. Beck of Pierce Bainbridge, LVMH failed in its opening brief to make mention of New York Civil Practice Law and Rules § 7515. Instead of addressing the “recent New York law prohibiting agreements that force victims of sexual harassment to arbitrate their claims,” as embodied in section 7515, Newton’s counsel tells the court that “Louis Vuitton larded its brief with insults and threats of sanctions in an effort to belittle Ms. Newton and shame her into silence.”

Only in its Reply Brief “does Louis Vuitton first address CPLR § 7515, arguing that [as a state law] it is preempted by the Federal Arbitration Act (‘FAA’).” LVMH’s preemption argument should be ignored, per Newton’s counsel, not only “because LVMH waived this argument when it failed to raise it in its Opening Brief,” but because “an agreement to arbitrate sexual harassment claims is not a ‘contract evidencing a transaction involving interstate commerce,’” which is what the FAA governs, and thus, falls outside of the scope of the FAA.

Still yet, Newton’s memo goes on to claim that even if the court were to opt not to rely on CPLR § 7515, it should refuse to refer the case to arbitration, as “an agreement to arbitrate sexual harassment claims was never formed [between Newton and LVMH] because it is unconscionable or violates public policy.”

In furtherance of her request that the court permit her the chance to file an additional reply to address the new claims that LVMH has raised regarding “preemption and retroactivity in the context of CPLR § 7515,” as well as to sign an Order to Show Cause, Newton asserts by way of her memo that this is not a straightforward contract matter in the same vein as if  “she were seeking to rescind a cable or cell phone service agreement, this case is not about a ‘purchaser’ of utilities.”

Instead, the memo argues that “this is about the right of a woman—who suffered sexual harassment and assault under Louis Vuitton’s watch—to litigate her claims in a public court rather than allowing Louis Vuitton to bury them in secret proceedings. Louis Vuitton asks this Court to help it perpetuate the culture of sexual harassment and assault by hiding Ms. Newton’s case from the public eye.”

In a letter to Judge Louis L. Nock on Tuesday, Winston & Strawn’s Aviva Grumet-Morris, counsel for LVMH, did not mince words, stating that while Newton might be accusing it of failing to address CPLR § 7515,  Newton’s initial complaint “ignored the Federal Arbitration Act” almost entirely, which LVMH calls the “decisive issue in this case.” Ms. Newton’s “failure to address the obvious federal preemption issues … demonstrates the frivolousness of [her] action in this court.”

LVMH’s counsel does not stop there, though, and goes on to assert that “while ignoring the FAA, [Newton] previously argued against [LVMH’s] motion [to compel arbitration] in large part based on CPLR 7515 … [but] failed to apprise the court of CPLR 7515’s effective date, which makes it clear that the state statute does not apply to this case.” Such an “omission,” LVMH claims, “was misleading and an effort [by Newton] to deceive the court.”

(As for the what it calls the plaintiff’s “half-hearted suggestion that LVMH should have raised CPLR 7515 in its [opening brief],” LVMH’s counsel asserts that, as it pointed out in its Reply, the state statute “has no bearing on this case in light of the FAA, which completely preempts it.”)

According to LVMH’s counsel, what is really behind Newton’s request to file an additional “eleventh hour” response brief, which comes “more than six weeks” after LVMH filed its Reply, is an attempt by the plaintiff to “address the fatal flaws in her [initial] response brief … on the eve of the [parties’] oral argument” about whether the case should be referred to arbitration.

And with that in mind, LVMH’s counsel requests that the court deny Newton’s request to file an “improper” additional reply and decline to sign the Order to Show Cause.

The parties’ oral argument on LVMH’s motion to compel arbitration is scheduled for August 8.

*The case is Andowah Newton v. LVMH, 154178/2019 (N.Y. Sup.).