Well here’s an interesting development in the Baxter v Scientology labor trafficking lawsuit.
Today, Judge Thomas Barber sent out notices to both sides that they have not given him enough information about whether or not contracts signed by the former Scientologists suing the church were signed under “duress,” and if that’s something the court can decide as a matter of law.
“It may be necessary for the Court to decide whether the duress issue may be determined by a court in the first instance, or must only be determined through arbitration,” Judge Barber said in the note he posted to the docket this morning.
He’s given both sides until February 27 to submit 10-page memos to him explaining whether the court can make a determination that the contracts are unenforceable because of duress. By March 3, both sides can then submit 5-page responses.
Um, wow!
The lawsuit was first filed on April 28 by Valeska Paris and a married couple, Gawain and Laura Baxter, who allege that they were forced into the Sea Org as children, suffered neglect and harsh punishments as children and adults, and served as virtual prisoners aboard the ship. Valeska also alleged that she had been sexually assaulted by other Sea Org workers, and then had been punished for speaking up about it.
Scientology responded by filing motions to compel arbitration, a strategy that has largely been a successful one for the church in recent years. The church says that Valeska and the Baxters signed contracts between 2003 and 2015 that obliged them not to sue but to take their grievances to Scientology’s internal form of arbitration. Also, Scientology is pointing out that a 2013 lawsuit filed by two former Scientologists, Luis and Rocio Garcia, was forced into arbitration in the same Tampa courtroom, and it was upheld on appeal by the federal Eleventh Circuit. The same fate should apply to the trafficking lawsuit, Scientology asserts.
The plaintiffs responded that there was no valid arbitration agreement because the documents Scientology has presented are conflicting and were signed under duress, among other reasons.
In September, the plaintiffs filed declarations detailing how they were forced to sign the contracts and were not given the ability to actually read them.
And at a November 17 hearing, described for us by Mark Bunker, Judge Barber asked a Scientology attorney, if a Sea Org member literally had a gun to their head while they were signing these contracts, wouldn’t that be duress? The Scientology attorney said and asserted that the contract would still apply.
But now Judge Barber is saying that neither side addressed this issue adequately, and he wants to hear from both of them.
Given the heavy precedent of the Garcia ruling hanging over this courthouse, this does seem like a positive development for Valeska and the Baxters. But we’ll caution you, that again we’re reminded of Judge Steven Kleifield, who similarly asked for additional briefing from both sides in Masterson civil lawsuit, but then still found for Scientology arbitration in that case. (He was later overturned by an appeals court.)
Well, either way, it’s certainly an exciting development.
Here’s Judge Barber’s entire order, as it appears in the docket.
ENDORSED ORDER: Presently pending before the Court are Defendants' motions to compel arbitration (Docs. 84; 85; 87; 88; 89). The Court held a hearing on November 17, 2022, where, among other things, the parties offered argument on whether the arbitration agreements in this case may be unenforceable due to duress. It may be necessary for the Court to decide whether the duress issue may be determined by a court in the first instance, or must only be determined through arbitration. See, e.g., Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967). Despite hundreds of pages of briefing, this issue appears to have only been addressed by the parties in two footnotes (Doc. 84, fn. 7 and Doc. 111 fn. 15). The parties are directed to submit additional briefing on this issue as follows: On or before February 27, 2023, each side (not party) shall file a memoranda of law addressing only the issue of whether the duress argument may be determined by a court in the first instance or must be submitted to arbitration. Although this case presently includes three plaintiffs and five defendants, the interests of the parties on both sides are significantly aligned on this issue. As such, the Court will accept only one joint memoranda of law from Plaintiffs, limited to 10 pages, and only one joint memoranda of law from Defendants, limited to 10 pages. On or before March 3, 2023, each side (not party) may file a joint response, limited to 5 pages. Signed by Judge Thomas P. Barber on 2/13/2023. (ANL) (Entered: 02/13/2023)
Looking at the footnotes that the judge cites, Scientology’s attorneys are citing a Supreme Court ruling (Buckeye Check Cashing v Cardegna), which was written by the late Justice Antonin Scalia, which says the court should cede such a ruling to arbitrators.
But the plaintiffs are pointing to a 1967 ruling, Prima Paint Corp v. Flood & Conklin Mfg, which suggests that the court may look into the underlying issues of the arbitration agreement.
Judge Barber wants both sides to argue this out. Does his court have the right to declare the contracts unenforceable if he feels that they were signed under duress?
We look forward to those Feb 27 memos.
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Well, that's not a negative development, but who knows...
Good luck to the plaintiffs!
Duress, be it physical or mental, is very much in play in this and every other $cieno 'arbitration agreement'. I am surprised that the plaintiffs hadn't provided evidence of such duress previously. I would have thought that the 'duress' featured very heavily in the initial complaint.