So David Miscavige is now a defendant: But can the trafficking lawsuit avoid arbitration?

[You got him, Valeska]

Naturally, after yesterday’s news that David Miscavige had finally been found by a court to be evading service in the Baxter v. Scientology labor trafficking lawsuit, and that the court had officially named him a defendant in the case, there was much rejoicing in the land.

The reaction here and Twitter and Facebook was swift and loud. Finally, Miscavige’s tricks had seemed to catch up with him.

It was especially gratifying reading the ruling by Tampa federal Magistrate Judge Julie S. Sneed, who swatted away specious arguments made by Miscavige’s attorneys that the Scientology leader shouldn’t be subject to the lawsuit because he did no business in Florida (Yes, in Florida where he has offices in the Flag Building!), or that he was just an officer of one small subsidiary just doing his job.

She noted that the plaintiffs had alleged that Miscavige is the ruthless micro-managing leader of Scientology and was responsible for the way people like Valeska Paris and the Baxters were treated in the Sea Org, both as children and as adults. (Those allegations still need to be proven, but Judge Sneed ruled that they had been alleged, and that’s what was needed at this point in the lawsuit in order to name Miscavige a defendant.)

And forevermore, other litigants can cite these words, now enshrined in a federal court docket: “Miscavige is actively concealing his whereabouts or evading service.”

Damn. It was a good day.

However, we want to caution some of our readers who thought this might immediately result in Miscavige being hauled down to the courthouse or put through a sworn deposition.

The order requires Miscavige merely to answer the lawsuit within 21 days. And that answer will be something written and submitted by an attorney. Miscavige himself won’t be going near the courthouse.

And anyway, even before Miscavige has to answer, the lawsuit itself is facing another big challenge which may make Miscavige’s being served moot anyway.

Yes, we’re talking about the arbitration issue, the bane of all litigation against the Church of Scientology in the last decade.

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.

Earlier this week, Judge Thomas Barber asked both sides to provide him 10-page memos to help him make a ruling on the arbitration issue.

Judge Barber is asking specifically about the question raised by the plaintiffs, that they should not be subject to contracts they signed as Sea Org members (contracts that contained arbitration clauses) because those contracts were signed under duress.

At a hearing on November 17, Judge Barber really seemed to understand this issue, and he asked one of the Scientology attorneys, if there was video literally showing a gun to the head of a Sea Org member signing one of these contracts, wouldn’t you consider that duress? The Scientology attorney replied that the contract, and its arbitration clause, would be valid anyway. It was an incredible moment.

So all right, Judge Barber seems to understand that these contracts might have been signed under duress. But what he’s asking both sides to argue is, can he even make that determination in his court? Or does he have to leave that up to the Scientology arbitrators?

It seems incredible, the idea that a federal judge, surely a powerful figure in our society, could not rule on what he plainly sees: contracts signed under duress.

But he points to two dueling Supreme Court rulings that the two sides are citing, and is asking them to wrestle with this problem. For our own edification, we turned to Scott Pilutik, the Underground Bunker’s attorney, for some help understanding the situation.

“The court is essentially asking whether it can hear the case at all. If the issue of duress concerns more than the arbitration clause, then the federal court might lack jurisdiction to hear the case if it would be more properly before an arbitrator, per the Scalia opinion.” Scott says.

Scientology’s attorneys are pointing to a 2006 Supreme Court ruling, Buckeye Check Cashing, Inc. v. Cardegna, which was written by the late Justice Antonin Scalia.

“The Scalia ruling is that the nature of the underlying dispute should determine whether a court or arbitrator can hear a dispute; if the dispute is only about the arbitration clause then a court can hear it (because if the arbitration clause itself is somehow invalid, the court needs to determine, as a threshold issue, whether the case can be heard by an arbitrator), but if the dispute implicates the entire agreement containing the arbitration clause, then the arbitrator should hear it because that's the purpose of agreeing to arbitration in the first place — keeping arbitration disputes out of the court.”

Whew. OK. And the plaintiffs’ attorneys are pointing to an earlier, 1967 Supreme Court ruling, Prima Paint Corp. v. Flood & Conklin Mfg. Co.

“The Prima Paint case suggests that arbitration clauses are severable, which is why plaintiffs are citing it,” Scott says. But the plaintiffs did argue that many parts of the agreement are unfair, and not just the arbitration clause.

“There's a kind of chicken-and-egg problem because they're likely arguing that routing this through a Scientology arbitrator would be egregiously unfair,” he says, and he’s certainly right about that.

Well, we admitted to him that we were finding this very hard to follow. If it’s just the arbitration clause that is disputed, then under Prima Paint it could be ruled on by the judge, but if it’s the entire agreement that is disputed, then that must be heard by the arbitrator, as Buckeye found?

“It's hard to wrap your head around, even for lawyers, because the facts in both cases there don't quite mirror this one as to what the parties are asking for,” Scott says.

And we guess that’s why Judge Barber wants both sides to wrestle with this question in 10-page memos that are due on February 27.

You will then see Scientology’s high-priced lawyers doing everything they can to convince a federal judge that, based on an Antonin Scalia ruling, he simply has no right to rule on what he sees before his very eyes: That children, children, were forced into slavery by the Church of Scientology.

Just incredible.

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Source Code: Actual things founder L. Ron Hubbard said on this date in history

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