Preview
NEW YO OUN 0/0 INDEX NO. 652945/2023
NYSCEF BOC. NO. 95 RECEIVED NYSCEF: 10/06/2023
EXHIBIT 2
Claimant's Motion to
Disqualify Arbitrator
INDEX NO. 652945/2023
NYSCEF DOC. NO. 95 RECEIVED NYSCEF 10/06/2023
FREEDMAN + TAITELMAN, LLP
ATTORNEYS AT LAW
1801 CENTURY PARK WEST, FIFTH FLOOR
LOS ANGELES, CALIFORNIA 90067-6007
TEL: (310) 201-0005
FAX: (310) 201-0045
E-MAIL: bfreedman@fillp.com
BRYAN J. FREEDMAN
June 19, 2023
Via JAMS Access — Neutrals Excluded
JAMS
620 Eighth Avenue, 34th Floor
New York, NY 10018
Re: Christopher Cuomo vy. Turner Services, Inc., et al.
JAMS Ref. No.: 5425000185
Dear JAMS:
Pursuant to JAMS Employment Arbitration Rules & Procedures, Rule 15(i), Claimant Christopher
Cuomo (“Claimant”) respectfully submits the following motion requesting that Arbitrator Stephen
P. Sonnenberg be disqualified from continuing to serve as Arbitrator in the above-entitled action.
This is admittedly a highly unusual situation. On the eve of the final arbitration hearing, the
Arbitrator’s conduct toward the parties manifested strong evidence of bias in favor of Respondents
CNN America, Inc. and Turner Services, Inc. (collectively, “Respondents”). As a direct result,
Claimant, for the first time, began to question whether the Arbitrator might have some undisclosed
conflict of interest that could explain the evident partiality toward Respondents.
Claimant was absolutely stunned to discover, after protracted research that began on the afternoon
of June 18 and continued through the morning of the hearing, that the Arbitrator had failed to
disclose the existence of a prior attorney-client relationship between himself and Respondent CNN
America, Inc. Specifically, the Arbitrator practiced at Paul Hastings LLP for 25 years (where he
held multiple leadership positions in the Labor & Employment practice), and during at least five
years of that time, Paul Hastings represented CNN America, Inc. before the National Labor
Relations Board. Because attorney-client relationships are imputed to all attorneys at the firm, the
Arbitrator indisputably had a direct conflict of interest that he was required to disclose.
But the Arbitrator did not disclose it. On the contrary, when asked if he had had “an attorney-client
relationship with a party . . . to the current arbitration, including representing the party,” his answer
was an unequivocal, unqualified “no.” Claimant justifiably relied on that representation and had
no reason whatsoever to question it—until the Arbitrator’s conduct in the final days before the
hearing led Claimant to suspect and research potential causes for underlying bias.
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Claimant discovered the evidence submitted with this memorandum on the morning of the hearing
on June 19, 2023, and raised the undisclosed conflict of interest with the Arbitrator at the earliest
possible opportunity. Shockingly, when confronted with his failure to disclose an obvious conflict
of interest, the Arbitrator argued the matter with Claimant's counsel, started to give all sorts of
reasons why Claimant was wrong, adjourned the hearing to try to prove himself correct, allowed
and listened to Respondents’ counsel’s argument, and then shockingly, ruled on his own
jurisdiction, finding that his disclosures had been proper. The Arbitrator even directed Claimant
to begin his opening statement and then tried a lesser remedy saying that testimony from witnesses
would not be taken, despite the obvious fact that the Arbitrator could not under any lawful legal
system actually argue and rule on his own jurisdiction. In light of the foregoing, this arbitrator can
no longer continue to serve as the judge, jury, executioner and advocate of his own challenged
jurisdiction. Instead, as the Arbitrator should have known, the challenge to the Arbitrator’s
jurisdiction must be resolved not by the Arbitrator but by JAMS. This stunning course of action
by the Arbitrator shows not only that there is an actual conflict of interest, but that it has resulted
in actual bias against and prejudice to Claimant, and that there are no circumstances in which
Claimant can have his claims heard by Arbitrator Sonnenberg.
Unsurprisingly, Respondents objected to adjourning this proceeding to allow the instant motion to
be filed and resolved. After all, why would they not want to have their claims and defenses ruled
on by their own prior counsel? But all of Respondents’ arguments fail due to the undeniable fact
that the Arbitrator failed to disclose an undisputable conflict of interest, which was discovered by
Claimant only because the Arbitrator’s conduct led Claimant to suspect an underlying bias. That
bias was confirmed when the Arbitrator attempted to force Claimant to proceed with the hearing
despite the existence of an unquestionable conflict of interest that was never disclosed by the
Arbitrator. For these and the following reasons, Claimant respectfully requests that JAMS grant
his request to disqualify Arbitrator Sonnenberg from continuing to serve as Arbitrator in this
proceeding, and appoint a replacement arbitrator pursuant to the JAMS Employment Arbitration
Rules & Procedures, Rule 15.
Just Before the Final Hearing, the Arbitrator Fails to Address Severe Prejudice to Claimant,
Giving Rise to Concerns of Bias
In the final days before this matter was set for its final hearing, a sequence of unusual events gave
rise to Claimant’s serious concerns about the impartiality of the Arbitrator.
Recently, the parties have leveled serious accusations of Protective Order violations at one another,
following the unexplained apparent leak and publication of confidential information. Respondents
initially filed their motion, without first seeking to meet and confer or even asking a single question
of Claimant’s counsel to find out the truth behind their serious accusations of misconduct and
harassing witnesses. Just two hours later, the Arbitrator ordered Claimant to respond in less than
one day.
Claimant drafted a forceful response making clear that, among other things, Claimant’s witness
and brother was at least as much harassed by the leak as Respondents’ witnesses, and the article
contained information that could not possibly have been known to, let alone leaked by, Claimant.
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Within two hours of the submission of Claimant’s response, the Arbitrator issued a ruling, without
setting a hearing on the motion, granting the relief that Respondents sought, a sworn declaration
from Claimant’s (and Respondents’) counsel.
Stunningly, when Respondents submitted their declaration (Ex. A), they submitted an elliptical,
ambiguous statement confirming that Matt Dornic—Respondents’ witness, whom Respondents
had presumably already been preparing for his testimony despite their recent decision to “relieve
him of his duties”’—had spoken to the reporter, a fact that appears to have been known to
Respondents before they even filed their inflammatory motion. Claimant was floored to learn that
Respondents had been aware all along that their own witness had spoken to the reporter, but had
failed to disclose this, even when challenged to do by Claimant’s counsel in front of the Arbitrator.
This confirmed what Claimant had known all along about the source of the leak.
Within hours of receiving this stunning admission from Respondents, Claimant sent a lengthy
response, detailing the utter shock Claimant felt to learn that Respondents had known about
Dornic’s conversation with the reporter. Claimant also explained that Claimant’s counsel had been
forced to inform Claimant’s witnesses of the grave doubts about the confidentiality of their
testimony in light of other pending investigations and civil litigation. Claimant demanded to meet
and confer and demanded that Respondents provide additional information that would have
allowed the witnesses to be reassured and appear. See Ex. B.
Claimant sent his email at 12:19 a.m. on Saturday, June 17, but by 5:25 p.m. that day, no response
was received. Claimant was forced to inform the Arbitrator of Respondents’ refusal to meet and
confer, as well as the fact that he had encountered difficulty securing the appearance of two of
Claimant’s three most important witnesses. See Ex. C.
Finally, at 5:33 p.m. on Saturday, Respondents’ counsel replied, again refusing to meet and confer
and merely stating that they expected Claimant’s order of witnesses to remain the same. See Ex.
D. Claimant’s counsel responded rebutting Respondents’ position and again urging the Arbitrator
to take immediate action. See Ex. E. Shortly after Claimant’s email, the Arbitrator finally
responded, echoing Respondents’ email and failing to address Claimant’s very real concerns,
ignoring the substance of the issues except to say that Claimant’s witnesses should be prepared to
show up at the hearing as planned. See Ex. F.
Aghast at the apparent failure to take the extreme prejudice seriously, Claimant wrote a second
email to the Arbitrator on Sunday morning, emphasizing his inability to move forward without his
key witnesses as a direct result of the belated and shocking disclosures by Respondents. See Ex.
G. As of late Sunday evening, on the eve of the final arbitration hearing, the Arbitrator had not
responded or acknowledged Claimant’s plea for intervention in any way. This stands in stark
contrast to the Arbitrator’s immediate responses to Respondents’ allegations.
Claimant was baffled and could only imagine that there must be some sort of bias or conflict that
would result in the wild disparity between the Arbitrator’s responses to the parties. As Claimant
could no longer devote Sunday to preparing his witnesses, and seeking some sort of explanation
for the bewildering turn of events, Claimant turned to researching possible reasons for the
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Arbitrator’s apparent bias. That research began on Sunday afternoon and continued through the
morning of the hearing before the Arbitrator on June 19, 2023.
The Arbitrator’s Prior Attorney-Client Relationship with Respondent CNN America, Inc.
Given the Arbitrator’s quarter-century career representing large corporate entertainment
employers, Claimant had extreme misgivings about moving forward before Arbitrator Sonnenberg
at the outset of this matter. Yet Claimant was reassured by, and decided to move forward based
upon and in reliance on, the Arbitrator’s unequivocal assurance, in his commencement disclosures,
that the Arbitrator had not had “an attorney-client relationship with a party . . . to the current
arbitration, including representing the party.” (Ex. H, Disclosure Checklist for All Arbitrations):
1. Arbitrator or member of arbitrator's family term “member of the arbitrator's family” includes the
arbitrator's immediate family or member of the arbitrator's household] is a party, a party’s spouse or domestic
partner, an officer, director or trustee of a party?_ (
2. Arbitrator or member of arbitrator's family is a lawyer in the arbitration, related to a lawyer in the
arbitration or currently associated in the private practice of law with a lawyer in the arbitration? i
3. Arbitrator or a member of arbitrator's family has or has had a significant personal relationship
with any party or lawyer for a party? (
4. Arbitrator is serving or within preceding 5 years has served:
(A) Asa neutral arbitrator in another arbitration involving a party, lawyer for a party, or law firm for a
party to the current arbitration? ( (
(B) As a party-appointed arbitrator in another arbitration for either a party, lawyer for a party, or law
firm for a party to the current arbitration? (
(© Asa neutral arbitrator in another arbitration in which s/he was selected by a person serving as a
party-appointed arbitrator in the current arbitration? (
(D) As a dispute resolution neutral other than an arbitrator in another pending or prior case involving a
party, lawyer for a party, or law firm in the current arbitration. c x )
5. Arbitrator has or has had an attomey-cli #t relationship
with a party or lawyer for a party to the current
arbitration. including representing the party office director or trustee of a p: or the arbitrator provided
legal advice to a party or a lawyer in the arbitration concerning an} \tter involved in the arbitration’ c
6. Arbitrator or member of the arbitrator s family has or has had any other professional relationshup with a party
or lawyer for a party, including as an expert witness or consultant? (
7. Arbitrator or member of arbitrator's family has a financial interest in a party? (The term “financial interest”
means ownership of a legal or equitable interest, or a relationship as a director, adviser, or other active
participant in the affairs of a party. [See, 28 U.S.CA. sec. 455.] ) x
8. Arbitrator or member of arbitrator's family has personal knowledge of disputed evidentiary facts relevant to
the arbitration? A person likely to be a material witness in the proceeding is deemed to have personal ( ) x
knowledge of disputed evidentiary facts
In other words, when the Arbitrator was asked whether the “Arbitrator has or has had an attorney-
client relationship with a party or lawyer for a party to the current arbitration, including
representing the party; an officer, director or trustee of a party; or the arbitrator provided legal
advice to a party or a lawyer in the arbitration concerning any matter involved in the arbitration,”
the Arbitrator responded, without any qualification or explanation, “No.” (Ex. H.)
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Claimant was therefore absolutely shocked to discover that the Arbitrator had failed to disclose
the fact that the law firm where he spent 25 years as a partner in private practice, Paul Hastings
LLP, directly represented CNN America, Inc., one of the two named Respondents in this action,
during the Arbitrator’s tenure at the firm. In other words, when the Arbitrator gave an unequivocal
and unqualified “n in response to the question of whether the “Arbitrator has or has had an
attorney-client relationship with a party . . . to the current arbitration, including representing the
party” (Ex. H), that disclosure was not just incomplete, but factually false.!
The Arbitrator was a partner at Paul Hastings during the time period from approximately 1993 to
early 2018. See https://www.jamsadr.com/sonnenberg/; see also Ex. H. In fact, he held multiple
leadership positions in the Paul Hastings Labor & Employment practice. Id.
From 2010 to 2014, during the Arbitrator’s tenure at Paul Hastings, his firm represented
Respondent CNN America, Inc. in at least four matters before the National Labor Relations Board:
e In 2010, Paul Hastings represented CNN America, Inc. d/b/a Turner Properties before the
National Labor Relations Board. See Ex. I.
In 2011, Paul Hastings again represented CNN America, Inc. before the National Labor
Relations Board. See Ex. J.
Paul Hastings again represented CNN America, Inc. in two related cases that were decided
by the National Labor Relations Board in December 2014. See Ex. K (excerpts from
NLRB decision); Ex. L (Law360 article covering NLRB decision and identifying Paul
Hastings as counsel for CNN America, Inc.).
The Arbitrator was not personally named as a legal representative of CNN America; rather, his
Paul Hastings colleagues Todd Duffield, Zachary Fasman, and Kenneth Willner represented CNN
America. See Exs. I-L. Notably, the Arbitrator appears to have personal relationships with each of
these attorneys. In 2011, the Arbitrator was co-counsel on another matter alongside Mr. Duffield.
See Ex. M. In 2016, the Arbitrator authored an article with Mr. Willner. See Ex. N. And just last
year, the Arbitrator appeared on a panel alongside Mr. Fasman. See Ex. O.
Under New York law, an attorney-client relationship is imputed to each attorney at the firm. New
York State Bar Association Rules of Professional Conduct, Rule 1.10; Solow v. W.R. Grace & Co.,
83 N.Y.2d 303, 306, 632 N.E.2d 437, 438 (1994) (“If one attorney in a firm is disqualified from
representing a client, then all attorneys in the firm are disqualified.”). This means that the attorney-
' Stunningly, this does not appear to be the only incomplete disclosure the Arbitrator has made in this case. On
March 27, 2023, the Arbitrator served a supplemental disclosure in this case that disclosed, without elaboration, that
the Arbitrator had “been selected to serve as mediator in another case in which attorney Bryan Freedman and the
firm Freedman & Taitelman, LLP is involved.” Ex. P. The Arbitrator did not disclose in his supplemental
disclosures that one of the parties in that mediation is a major client of Respondents’ counsel (and employer of the
Arbitrator’s son). Furthermore, Claimant has reason to believe that the Arbitrator may still have a financial interest
in the Paul Hastings firm, which currently represents Warner Bros. Discovery, Respondents’ ultimate corporate
parent, in a number of matters. To the extent that such a financial interest exists, the failure to disclose it would
represent a separate and independent grounds to disqualify the Arbitrator, because his financial interests are
inextricably linked to the financial success of his prior firm—and that firm’s clients, including Warner Bros.
Discovery.
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client relationship between Respondent CNN America, Inc. and Paul Hastings was imputed to the
Arbitrator.
In short, because the Arbitrator was a partner at Paul Hastings at a time when the firm represented
CNN America, Inc., the attorney-client relationship between Paul Hastings and CNN America was
necessarily imputed to the Arbitrator. The Arbitrator’s answer of “no” to the question asking
whether he “has or has had an attorney-client relationship with a party” was therefore incorrect.
The attorney-client relationship between the Arbitrator and Respondent CNN America, Inc. was
required to be disclosed.
No doubt Respondents will argue that the relationship between the Arbitrator and CNN America
is too attenuated to justify disqualifying the Arbitrator. They will doubtless argue that the
Arbitrator did not personally represent Respondents, and an arbitrator who previously practiced at
a large law firm with many lawyers and many clients cannot be expected to keep track of each and
every potential conflict of interest. However, that is not the law. New York “has expressed a policy
of ‘maximum prehearing disclosure’ in arbitration proceedings.” SOMA Partners, LLC v. Nw.
Biotherapeutics, Inc., 41 A.D.3d 257, 258, 838 N.Y.S.2d 519 (2007) (quotingJ. P. Stevens & Co.
v. Rytex Corp., 34 N.Y.2d 123, 128, 312 N.E.2d 466, 469 (1974) [Rytex Corp.]). “Consequently,
an arbitrator should ‘disclose any relationship which raises even a suggestion of possible bias. 39
Id. (quoting Kern v. 303 E. 57th St. Corp., 204 A.D.2d 152, 153, 611 N.Y.S.2d 547 (1994).
Respondents also argued at the hearing on June 19 that the Arbitrator’s disclosures were sufficient;
that they were skeptical that Claimant had only recently learned of the Arbitrator’s undisclosed
conflict of interest; and that this arbitration is too far advanced for a party to now attempt to
disqualify the Arbitrator. These arguments fail for several obvious reasons.
First, the Arbitrator’s disclosures are not just insufficient, but blatantly false. When asked if he
“has or has had an attorney-client relationship with a party” in this action, the Arbitrator answered,
without explanation or qualification, “no.” To attempt to explain away this false representation,
Respondents (and the Arbitrator) pointed to language stating that “it is possible that the
[Arbitrator’s prior] firm was aligned with or was adverse to a party in this matter.” (Ex. H.) But
stating that it is “possible” that a firm was “aligned with . . . a party in this matter” is a far, far cry
from admitting the truth: that the Arbitrator had a direct attorney-client relationship with a named
party in this matter for at least five years. (Exs. I-L.)
Second, while Respondents are sure to dispute the timing of Claimant’s discovery of the evident
conflict of interest, Claimant represents, in the sworn Declaration of Mark Geragos, the following
facts:
e that Claimant had previously relied on the Arbitrator’s unequivocal statement in his
disclosures that there existed no prior attorney-client relationship between himself and any
party in this arbitration;
e that, after the Arbitrator manifested bias in favor of Respondents in the days before the
final hearing, Claimant became concerned about the existence of some undisclosed conflict
on the part of the Arbitrator;
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that Claimant’s counsel began researching potential conflicts on the evening of Sunday,
June 18, 2023:
that that research continued throughout the morning of the hearing on Monday, June 19,
2023; and
that Claimant raised the undisclosed conflict at the earliest possible opportunity at the
hearing after learning of it.
See Ex. Q (Declaration of Mark Geragos).
Respondents will also argue that by having arbitrated in good faith on reliance on the Arbitrator’s
disclosures, Claimant has somehow waived the right to object to the Arbitrator’s failure to disclose
a manifest conflict of interest. But given that the Arbitrator himself assured the parties, in plain
terms, that he had no prior attorney-client relationship with any party to this arbitration, Claimant’s
reliance is entirely justified and his objections are not waived, since he raised the objection at the
earliest possible time after learning of the conflict.
Black-Letter Law Requires Disqualification of the Arbitrator
An arbitration award may be vacated on the ground of the “partiality of an arbitrator appointed as
a neutral.” C.P.L.R. 7511(b)(1)(ii). When it comes to judging the impartiality of the arbitrator,
“Tt]hat role is best consigned to the parties, who are the architects of their own arbitration process,
and are better informed of the prevailing ethical standards and reputations within their business.”
SOMA Partners, LLC, 41 A.D. 3d at 258. “This can only be achieved if, prior to the
commencement of the arbitration, the arbitrator discloses to the parties all facts which might
reasonably cause one of them to ask for disqualification of the arbitrator.” Id. (quoting Rytex Corp.,
34.N.Y. 2d at 128) (emphasis added).
Justice White, in his concurrence in Commonwealth Coatings Corp. v. Continental Casualty Co.,
393 U.S. 145, 151 (1968), elaborated:
“The arbitration process functions best when an amicable and trusting atmosphere
is preserved ... . This end is best served by establishing an atmosphere of frankness
at the outset, through disclosure by the arbitrator . . . . In many cases the arbitrator
might believe the business relationship to be so insubstantial that to make a point
of revealing it would suggest he is indeed easily swayed, and perhaps a partisan of
that party. But if the law requires the disclosure, no such imputation can arise. And
it is far better that the relationship be disclosed at the outset, when the parties are
free to reject the arbitrator or accept him with knowledge of the relationship and
continuing faith in his objectivity, than to have the relationship come to light after
the arbitration, when a suspicious or disgruntled party can seize on it as a pretext
for invalidating the award.”
Notably, in SOMA Partners, the Appellate Division found that the arbitrator improperly failed to
disclose an even more insubstantial relationship than that at issue here. In that case, the arbitrator
was a private practitioner at the New York office of a large law firm who was assigned through
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the American Arbitration Association. SOMA Partners, 41 A.D.3d at 257. He circulated the
conflicts list through his large firm, including Toucan Capital Corp. and Linda Powers, both
nonparties. Id. The arbitrator received a response from an “of counsel” in the firm’s Washington
office stating that, through his service as a member of the board of directors of the Maryland
Technology Development Corporation (Tedco), a quasi-governmental agency, he personally knew
Powers, and that Tedco had contractual and investment relationships with Toucan Capital. Id. The
arbitrator made no further inquiry and informed the parties that he had no conflict to disclose. Id.
The Appellate Division found that this connection between the Arbitrator and nonparty witnesses
“was not so insignificant that he could dispense with disclosure, and therefore the arbitration award
must be vacated and a new arbitration conducted.” Id. at 259.
That case involved an arbitrator’s failure to disclose a far more insubstantial relationship than has
been discovered here. In SOMA Partners, the arbitrator’s award was vacated for failure to disclose
the fact that the arbitrator’s colleague from a different office knew and had some business with
nonparties who were tangentially involved in the case. Here, by contrast, the Arbitrator has failed
to disclose a preexisting direct attorney-client relationship between himself and one of the
Respondents.
Given what Claimant has now learned about the inaccuracy and incompleteness of the Arbitrator’s
disclosures, he cannot proceed with the arbitration: “If a party goes forward with arbitration,
having actual knowledge of the arbitrator’s bias, or of facts that reasonably should have prompted
further, limited inquiry, it may not later claim bias based upon the failure to disclose such facts.”
Rytex Corp., 34 N.Y. 2d at 129. “While such responsibility to ascertain potentially disqualifying
facts does rest upon the parties, the major burden of disclosure properly falls upon the arbitrator.
After all, the arbitrator is in a far better position than the parties to determine and reveal those facts
that might give rise to an inference of bias.” Id.
The Arbitrator’s Evident Bias Provides Additional Grounds for Disqualification
Immediately upon learning of the obvious conflict of interest that the Arbitrator had failed to
disclose, Claimant’s counsel advised the Arbitrator of the conflict and stated on the record that
Claimant intended to move to disqualify the Arbitrator for cause.
In one of the most shocking decisions in the three-decade legal career of the undersigned, the
Arbitrator began to argue with Claimant’s counsel, claiming that his disclosures were sufficient
and that he could retain jurisdiction. Worse still, after Claimant advised the Arbitrator of his
motion and that the Arbitrator must immediately adjourn the hearing, the Arbitrator directed the
parties that the hearing would nevertheless proceed and that the Claimant must make his opening
statement.
The idea that the Arbitrator, having been advised of a blatant conflict of interest that he had failed
to disclose, would direct the parties to proceed with the hearing is a manifestation of obvious bias
on the part of the Arbitrator. To be clear, the Arbitrator was advised that he had had a preexisting
attorney-client relationship with one of the named parties in this arbitration and his continued
service as arbitrator was being challenged for cause. But the Arbitrator decided to proceed
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anyway, apparently intending to preside over and issue a final award in a matter involving his own
former client.
In other words, the Arbitrator has taken the role of judge, adverse party, and opposing counsel, by
arguing the merits of this motion with Claimant’s counsel, and then ruling on it by finding that he
had jurisdiction:
ARBITRATOR SONNENBERG: All
right. So with respect to your intent
to file a motion to disqualify --
MR. GERAGOS: Correct.
ARBITRATOR SONNENBERG: oo
think that my disclosufes were
previously made. And if you wish to
16 file a motion to disqualify, then
a1 that's your prerogative.
12 MR. GERAGOS: Correct. rll
a5 have it filed today.
Ex. R, at 72.
17 MR. GERAGOS: I'm requesting we
18 not continue because I just looked and
19 it does not look like there was a
20 previous disclosure.
21 ARBITRATOR SONNENBERG: Okay.
22 Well, you're referring to a firm that
23 I used to be with, and I think that
24 the disclosures were appropriate. But
25 if you feel you need to file a motion,
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1 CONFIDENTIAL - VOLUME I - ROUGH DRAFT
2 then that's your prerogative.
Id. at 72-73.
ARBITRATOR SONNENBERG: All
right. I refer all counsel to the
10 disclosures, that I made on April 19,
ik 2022, including a response to
12 Question 4D.
13 I'm ready to proceed. I have
14 jurisdiction here. I don't have any
15 order telling me that I do not have
16 jurisdiction.
ae I understand you wish to make
18 motions, and that's your prerogative.
19 We'll continue. I will,
20 however, not take witness testimony
21 today. I will proceed with opening
22 statements.
23 We're ready.
Id. at 78.
By not only arguing the merits of Claimant’s disqualification motion, but arguing the merits and
then ruling on that question by finding that his own disclosures were adequate and that he could
retain jurisdiction, and then ordering the parties to proceed with opening statements, the Arbitrator
demonstrated startling bias against Claimant and in favor of Respondents. Indeed, he should be
disqualified because his conduct in attempting to act as opposing counsel and judge on his own
disqualification issue shows “he will be either deaf to the testimony or blind to the evidence
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presented” in the hearing. Matter of Excelsior 57th Corp. (Kern), 218 A.D.2d 528, 530, 630
N.Y.S.2d 492, 494 (1995); see also Santana v. Country-Wide Ins. Co., 177 Misc. 2d 1, 6, 675
N.Y.S.2d 817 (Civ. Ct. 1998), aff'd, 184 Misc. 2d 294, 714 N.Y.S.2d 854 (App. Term 2000)
(‘[W]here the challenged arbitrator, instead of referring the final determination of the
disqualification issue to the [arbitration association], made his own call, he has, in effect, . . .
thereby exceeded his power”) (quotation omitted).
Even if the Arbitrator had not previously demonstrated bias in favor of Respondents, now that
Claimant has raised and argued this motion before the Arbitrator, challenging the adequacy of the
Arbitrator’s own disclosures and jurisdiction, Claimant could not possibly expect to receive a full
and fair hearing on the merits before this same Arbitrator. There is simply no path forward except
to disqualify Arbitrator Sonnenberg and appoint a new arbitrator following the JAMS appointment
rules.
“The proper standard of review for the disqualification of arbitrators is whether the arbitration
process is free of the appearance of bias.” Rabinowitz v. Olewski, 100 A.D.2d 539, 540, 473
N.Y.S.2d 232, 234 (1984) (citing Commonwealth Corp. v. Continental Co., 393 U.S. 145, 89 S.Ct.
337, 21 L.Ed.2d 301 (1968)). Here, the bias of the Arbitrator is manifest both as a result of his
existing attorney-client relationship with a named party in this action, and because his actions on
learning of the conflict demonstrate that he cannot be impartial in this matter.
Conclusion: Arbitrator Sonnenberg Must Be Disqualified
In sum, the Arbitrator’s own course of conduct in the final days before the hearing gave Claimant
grave concerns about his ability to be impartial, leading Claimant to investigate the existence of
any undisclosed conflicts. Claimant found an undeniable conflict of interest that was never
disclosed by the Arbitrator, and raised an appropriate objection at the earliest opportunity. The
Arbitrator then attempted to argue the merits of that objection, acting as his own advocate (and
Respondents’ advocate) before ruling on it himself. His actions give rise to an appearance of bias
that cannot be dispelled, especially in light of the actual existing attorney-client relationship
between the Arbitrator and a named party in this action. He must be disqualified.
Claimant’s counsel files this motion only reluctantly, as their preference would be to go forward
with the case they have spent months preparing. But Claimant’s counsel is ethically obliged to go
forward only when they can be assured that Claimant will receive a full and fair hearing on his
claims. Claimant’s counsel has worked at a feverish pace on this issue since learning of it only a
short time ago, and has come to the unavoidable realization that, once Claimant’s counsel had
become aware of the indisputable and undisclosed conflict of interest and the actual demonstrated
bias on the part of the Arbitrator, Claimant’s counsel had no choice but advise Claimant to
respectfully ask JAMS to grant his motion to disqualify Arbitrator Sonnenberg from continuing to
serve as arbitrator in this action, pursuant to Rule 15(i).
This letter does not constitute a complete recitation of all the facts and circumstances related to
this matter. It is not a waiver of, or prejudice to, any of our client’s rights, remedies or claims at
INDEX NO. 652945/2023
NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023
JAMS
June 19, 2023
Page 12
law or in equity. They are all expressly reserved as is our client’s attorney-client privilege and
attorney work product, among every other privilege.
Very truly yours,
FREEDMAN + TAITELMAN, LLP
Bryan J. Freedman
cc: Service List (Excluding Neutrals)
iD: YORK OUN PK 06 DM INDEX NO. 652945/2023
NYSCEF BOC. NO. 95 RECEIVED NYSCEF: 10/06/2023
EXHIBIT A
INDEX NO. 652945/2023
(FILED: NEW YORK COUNTY CLERK 1070672023 01:30 PM
NYSCEF DOC. NO. 95 RECEIVED NYSCEF 10/06/2023
JAMS ARBITRATION
NEW YORK, NEW YORK
CHRISTOPHER CUOMO, an individual,
Claimant,
Vv.
TURNER SERVICES, INC.; CNN
AMERICA, INC., JAMS Case No. 542000185
Respondents.
TURNER SERVICES, INC.; CNN
AMERICA, INC.,
Counter-Claimants,
Vv.
CHRISTOPHER CUOMO, an individual,
Counter-Respondent.
DECLARATION OF NATASHA W. TELEANU
Pursuant to Order No. 34 and without waiver of the attorney-client privilege or work
product rule, I confirm that I, along with assistance from my team, have checked with
Respondents and all members of Respondents’ team, including, without limitation, attorneys,
paralegals, public relations, and communications personnel, and each of those individuals
attested that no one has directly or indirectly or otherwise disclosed to any member of the media
or other third party any documents or information designated Confidential or Highly
Confidential under the Protective Order, or any other non-public information regarding the
upcoming hearing, including the parties’ witness lists.
During the June 14, 2021 conference with the Arbitrator, Claimant’s counsel asserted that
1
(FILED: NEW YORK COUNTY CLERK 1070672023 01:30 PM INDEX NO. 652945/2023
NYSCEF DOC. NO. 95 RECEIVED NYSCEF 10/06/2023
Matt Dornic, CNN’s former Head of Strategic Communications, had “leaked” information to the
reporter who wrote the June 11, 2023 article titled How Warner Used CNN to Lobby Andrew
Cuomo. Claimant’s counsel is wrong. The reporter contacted Mr. Dornic on June 8, 2023, via
text and already knew the Confidential information. The reporter texted: “Hey question for you:
I’m writing a piece about the upcoming Cuomo/CNN arbitration. I have some details that I think
are likely to come up, but I’m also noting it’s coming at a strange and possibly damaging time
for the network. I’m going to mention in the piece that you’re a witness, and I wanted to see if
there was anything you thought I should include. Give me a call if you have a sec?” They
spoke, and when the reporter asked Mr. Dornic for comment, Mr. Dornic told him he could not
respond at all. In addition, the reporter told Mr. Dornic “I have messages” between Ann Sarnoff,
Governor Cuomo, and Allison Gollust trying to set up meetings about re-opening theaters. The
reporter asked Mr. Dornic if he knew about that topic, and Mr. Dornic responded that he had no
idea what that meant.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: June 16, 2023
Preview
NEW YO OUN 0/0 INDEX NO. 652945/2023 NYSCEF BOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 EXHIBIT 2 Claimant's Motion to Disqualify Arbitrator INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF 10/06/2023 FREEDMAN + TAITELMAN, LLP ATTORNEYS AT LAW 1801 CENTURY PARK WEST, FIFTH FLOOR LOS ANGELES, CALIFORNIA 90067-6007 TEL: (310) 201-0005 FAX: (310) 201-0045 E-MAIL: bfreedman@fillp.com BRYAN J. FREEDMAN June 19, 2023 Via JAMS Access — Neutrals Excluded JAMS 620 Eighth Avenue, 34th Floor New York, NY 10018 Re: Christopher Cuomo vy. Turner Services, Inc., et al. JAMS Ref. No.: 5425000185 Dear JAMS: Pursuant to JAMS Employment Arbitration Rules & Procedures, Rule 15(i), Claimant Christopher Cuomo (“Claimant”) respectfully submits the following motion requesting that Arbitrator Stephen P. Sonnenberg be disqualified from continuing to serve as Arbitrator in the above-entitled action. This is admittedly a highly unusual situation. On the eve of the final arbitration hearing, the Arbitrator’s conduct toward the parties manifested strong evidence of bias in favor of Respondents CNN America, Inc. and Turner Services, Inc. (collectively, “Respondents”). As a direct result, Claimant, for the first time, began to question whether the Arbitrator might have some undisclosed conflict of interest that could explain the evident partiality toward Respondents. Claimant was absolutely stunned to discover, after protracted research that began on the afternoon of June 18 and continued through the morning of the hearing, that the Arbitrator had failed to disclose the existence of a prior attorney-client relationship between himself and Respondent CNN America, Inc. Specifically, the Arbitrator practiced at Paul Hastings LLP for 25 years (where he held multiple leadership positions in the Labor & Employment practice), and during at least five years of that time, Paul Hastings represented CNN America, Inc. before the National Labor Relations Board. Because attorney-client relationships are imputed to all attorneys at the firm, the Arbitrator indisputably had a direct conflict of interest that he was required to disclose. But the Arbitrator did not disclose it. On the contrary, when asked if he had had “an attorney-client relationship with a party . . . to the current arbitration, including representing the party,” his answer was an unequivocal, unqualified “no.” Claimant justifiably relied on that representation and had no reason whatsoever to question it—until the Arbitrator’s conduct in the final days before the hearing led Claimant to suspect and research potential causes for underlying bias. INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 2 Claimant discovered the evidence submitted with this memorandum on the morning of the hearing on June 19, 2023, and raised the undisclosed conflict of interest with the Arbitrator at the earliest possible opportunity. Shockingly, when confronted with his failure to disclose an obvious conflict of interest, the Arbitrator argued the matter with Claimant's counsel, started to give all sorts of reasons why Claimant was wrong, adjourned the hearing to try to prove himself correct, allowed and listened to Respondents’ counsel’s argument, and then shockingly, ruled on his own jurisdiction, finding that his disclosures had been proper. The Arbitrator even directed Claimant to begin his opening statement and then tried a lesser remedy saying that testimony from witnesses would not be taken, despite the obvious fact that the Arbitrator could not under any lawful legal system actually argue and rule on his own jurisdiction. In light of the foregoing, this arbitrator can no longer continue to serve as the judge, jury, executioner and advocate of his own challenged jurisdiction. Instead, as the Arbitrator should have known, the challenge to the Arbitrator’s jurisdiction must be resolved not by the Arbitrator but by JAMS. This stunning course of action by the Arbitrator shows not only that there is an actual conflict of interest, but that it has resulted in actual bias against and prejudice to Claimant, and that there are no circumstances in which Claimant can have his claims heard by Arbitrator Sonnenberg. Unsurprisingly, Respondents objected to adjourning this proceeding to allow the instant motion to be filed and resolved. After all, why would they not want to have their claims and defenses ruled on by their own prior counsel? But all of Respondents’ arguments fail due to the undeniable fact that the Arbitrator failed to disclose an undisputable conflict of interest, which was discovered by Claimant only because the Arbitrator’s conduct led Claimant to suspect an underlying bias. That bias was confirmed when the Arbitrator attempted to force Claimant to proceed with the hearing despite the existence of an unquestionable conflict of interest that was never disclosed by the Arbitrator. For these and the following reasons, Claimant respectfully requests that JAMS grant his request to disqualify Arbitrator Sonnenberg from continuing to serve as Arbitrator in this proceeding, and appoint a replacement arbitrator pursuant to the JAMS Employment Arbitration Rules & Procedures, Rule 15. Just Before the Final Hearing, the Arbitrator Fails to Address Severe Prejudice to Claimant, Giving Rise to Concerns of Bias In the final days before this matter was set for its final hearing, a sequence of unusual events gave rise to Claimant’s serious concerns about the impartiality of the Arbitrator. Recently, the parties have leveled serious accusations of Protective Order violations at one another, following the unexplained apparent leak and publication of confidential information. Respondents initially filed their motion, without first seeking to meet and confer or even asking a single question of Claimant’s counsel to find out the truth behind their serious accusations of misconduct and harassing witnesses. Just two hours later, the Arbitrator ordered Claimant to respond in less than one day. Claimant drafted a forceful response making clear that, among other things, Claimant’s witness and brother was at least as much harassed by the leak as Respondents’ witnesses, and the article contained information that could not possibly have been known to, let alone leaked by, Claimant. INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 3 Within two hours of the submission of Claimant’s response, the Arbitrator issued a ruling, without setting a hearing on the motion, granting the relief that Respondents sought, a sworn declaration from Claimant’s (and Respondents’) counsel. Stunningly, when Respondents submitted their declaration (Ex. A), they submitted an elliptical, ambiguous statement confirming that Matt Dornic—Respondents’ witness, whom Respondents had presumably already been preparing for his testimony despite their recent decision to “relieve him of his duties”’—had spoken to the reporter, a fact that appears to have been known to Respondents before they even filed their inflammatory motion. Claimant was floored to learn that Respondents had been aware all along that their own witness had spoken to the reporter, but had failed to disclose this, even when challenged to do by Claimant’s counsel in front of the Arbitrator. This confirmed what Claimant had known all along about the source of the leak. Within hours of receiving this stunning admission from Respondents, Claimant sent a lengthy response, detailing the utter shock Claimant felt to learn that Respondents had known about Dornic’s conversation with the reporter. Claimant also explained that Claimant’s counsel had been forced to inform Claimant’s witnesses of the grave doubts about the confidentiality of their testimony in light of other pending investigations and civil litigation. Claimant demanded to meet and confer and demanded that Respondents provide additional information that would have allowed the witnesses to be reassured and appear. See Ex. B. Claimant sent his email at 12:19 a.m. on Saturday, June 17, but by 5:25 p.m. that day, no response was received. Claimant was forced to inform the Arbitrator of Respondents’ refusal to meet and confer, as well as the fact that he had encountered difficulty securing the appearance of two of Claimant’s three most important witnesses. See Ex. C. Finally, at 5:33 p.m. on Saturday, Respondents’ counsel replied, again refusing to meet and confer and merely stating that they expected Claimant’s order of witnesses to remain the same. See Ex. D. Claimant’s counsel responded rebutting Respondents’ position and again urging the Arbitrator to take immediate action. See Ex. E. Shortly after Claimant’s email, the Arbitrator finally responded, echoing Respondents’ email and failing to address Claimant’s very real concerns, ignoring the substance of the issues except to say that Claimant’s witnesses should be prepared to show up at the hearing as planned. See Ex. F. Aghast at the apparent failure to take the extreme prejudice seriously, Claimant wrote a second email to the Arbitrator on Sunday morning, emphasizing his inability to move forward without his key witnesses as a direct result of the belated and shocking disclosures by Respondents. See Ex. G. As of late Sunday evening, on the eve of the final arbitration hearing, the Arbitrator had not responded or acknowledged Claimant’s plea for intervention in any way. This stands in stark contrast to the Arbitrator’s immediate responses to Respondents’ allegations. Claimant was baffled and could only imagine that there must be some sort of bias or conflict that would result in the wild disparity between the Arbitrator’s responses to the parties. As Claimant could no longer devote Sunday to preparing his witnesses, and seeking some sort of explanation for the bewildering turn of events, Claimant turned to researching possible reasons for the INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 4 Arbitrator’s apparent bias. That research began on Sunday afternoon and continued through the morning of the hearing before the Arbitrator on June 19, 2023. The Arbitrator’s Prior Attorney-Client Relationship with Respondent CNN America, Inc. Given the Arbitrator’s quarter-century career representing large corporate entertainment employers, Claimant had extreme misgivings about moving forward before Arbitrator Sonnenberg at the outset of this matter. Yet Claimant was reassured by, and decided to move forward based upon and in reliance on, the Arbitrator’s unequivocal assurance, in his commencement disclosures, that the Arbitrator had not had “an attorney-client relationship with a party . . . to the current arbitration, including representing the party.” (Ex. H, Disclosure Checklist for All Arbitrations): 1. Arbitrator or member of arbitrator's family term “member of the arbitrator's family” includes the arbitrator's immediate family or member of the arbitrator's household] is a party, a party’s spouse or domestic partner, an officer, director or trustee of a party?_ ( 2. Arbitrator or member of arbitrator's family is a lawyer in the arbitration, related to a lawyer in the arbitration or currently associated in the private practice of law with a lawyer in the arbitration? i 3. Arbitrator or a member of arbitrator's family has or has had a significant personal relationship with any party or lawyer for a party? ( 4. Arbitrator is serving or within preceding 5 years has served: (A) Asa neutral arbitrator in another arbitration involving a party, lawyer for a party, or law firm for a party to the current arbitration? ( ( (B) As a party-appointed arbitrator in another arbitration for either a party, lawyer for a party, or law firm for a party to the current arbitration? ( (© Asa neutral arbitrator in another arbitration in which s/he was selected by a person serving as a party-appointed arbitrator in the current arbitration? ( (D) As a dispute resolution neutral other than an arbitrator in another pending or prior case involving a party, lawyer for a party, or law firm in the current arbitration. c x ) 5. Arbitrator has or has had an attomey-cli #t relationship with a party or lawyer for a party to the current arbitration. including representing the party office director or trustee of a p: or the arbitrator provided legal advice to a party or a lawyer in the arbitration concerning an} \tter involved in the arbitration’ c 6. Arbitrator or member of the arbitrator s family has or has had any other professional relationshup with a party or lawyer for a party, including as an expert witness or consultant? ( 7. Arbitrator or member of arbitrator's family has a financial interest in a party? (The term “financial interest” means ownership of a legal or equitable interest, or a relationship as a director, adviser, or other active participant in the affairs of a party. [See, 28 U.S.CA. sec. 455.] ) x 8. Arbitrator or member of arbitrator's family has personal knowledge of disputed evidentiary facts relevant to the arbitration? A person likely to be a material witness in the proceeding is deemed to have personal ( ) x knowledge of disputed evidentiary facts In other words, when the Arbitrator was asked whether the “Arbitrator has or has had an attorney- client relationship with a party or lawyer for a party to the current arbitration, including representing the party; an officer, director or trustee of a party; or the arbitrator provided legal advice to a party or a lawyer in the arbitration concerning any matter involved in the arbitration,” the Arbitrator responded, without any qualification or explanation, “No.” (Ex. H.) INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 5 Claimant was therefore absolutely shocked to discover that the Arbitrator had failed to disclose the fact that the law firm where he spent 25 years as a partner in private practice, Paul Hastings LLP, directly represented CNN America, Inc., one of the two named Respondents in this action, during the Arbitrator’s tenure at the firm. In other words, when the Arbitrator gave an unequivocal and unqualified “n in response to the question of whether the “Arbitrator has or has had an attorney-client relationship with a party . . . to the current arbitration, including representing the party” (Ex. H), that disclosure was not just incomplete, but factually false.! The Arbitrator was a partner at Paul Hastings during the time period from approximately 1993 to early 2018. See https://www.jamsadr.com/sonnenberg/; see also Ex. H. In fact, he held multiple leadership positions in the Paul Hastings Labor & Employment practice. Id. From 2010 to 2014, during the Arbitrator’s tenure at Paul Hastings, his firm represented Respondent CNN America, Inc. in at least four matters before the National Labor Relations Board: e In 2010, Paul Hastings represented CNN America, Inc. d/b/a Turner Properties before the National Labor Relations Board. See Ex. I. In 2011, Paul Hastings again represented CNN America, Inc. before the National Labor Relations Board. See Ex. J. Paul Hastings again represented CNN America, Inc. in two related cases that were decided by the National Labor Relations Board in December 2014. See Ex. K (excerpts from NLRB decision); Ex. L (Law360 article covering NLRB decision and identifying Paul Hastings as counsel for CNN America, Inc.). The Arbitrator was not personally named as a legal representative of CNN America; rather, his Paul Hastings colleagues Todd Duffield, Zachary Fasman, and Kenneth Willner represented CNN America. See Exs. I-L. Notably, the Arbitrator appears to have personal relationships with each of these attorneys. In 2011, the Arbitrator was co-counsel on another matter alongside Mr. Duffield. See Ex. M. In 2016, the Arbitrator authored an article with Mr. Willner. See Ex. N. And just last year, the Arbitrator appeared on a panel alongside Mr. Fasman. See Ex. O. Under New York law, an attorney-client relationship is imputed to each attorney at the firm. New York State Bar Association Rules of Professional Conduct, Rule 1.10; Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 306, 632 N.E.2d 437, 438 (1994) (“If one attorney in a firm is disqualified from representing a client, then all attorneys in the firm are disqualified.”). This means that the attorney- ' Stunningly, this does not appear to be the only incomplete disclosure the Arbitrator has made in this case. On March 27, 2023, the Arbitrator served a supplemental disclosure in this case that disclosed, without elaboration, that the Arbitrator had “been selected to serve as mediator in another case in which attorney Bryan Freedman and the firm Freedman & Taitelman, LLP is involved.” Ex. P. The Arbitrator did not disclose in his supplemental disclosures that one of the parties in that mediation is a major client of Respondents’ counsel (and employer of the Arbitrator’s son). Furthermore, Claimant has reason to believe that the Arbitrator may still have a financial interest in the Paul Hastings firm, which currently represents Warner Bros. Discovery, Respondents’ ultimate corporate parent, in a number of matters. To the extent that such a financial interest exists, the failure to disclose it would represent a separate and independent grounds to disqualify the Arbitrator, because his financial interests are inextricably linked to the financial success of his prior firm—and that firm’s clients, including Warner Bros. Discovery. INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 6 client relationship between Respondent CNN America, Inc. and Paul Hastings was imputed to the Arbitrator. In short, because the Arbitrator was a partner at Paul Hastings at a time when the firm represented CNN America, Inc., the attorney-client relationship between Paul Hastings and CNN America was necessarily imputed to the Arbitrator. The Arbitrator’s answer of “no” to the question asking whether he “has or has had an attorney-client relationship with a party” was therefore incorrect. The attorney-client relationship between the Arbitrator and Respondent CNN America, Inc. was required to be disclosed. No doubt Respondents will argue that the relationship between the Arbitrator and CNN America is too attenuated to justify disqualifying the Arbitrator. They will doubtless argue that the Arbitrator did not personally represent Respondents, and an arbitrator who previously practiced at a large law firm with many lawyers and many clients cannot be expected to keep track of each and every potential conflict of interest. However, that is not the law. New York “has expressed a policy of ‘maximum prehearing disclosure’ in arbitration proceedings.” SOMA Partners, LLC v. Nw. Biotherapeutics, Inc., 41 A.D.3d 257, 258, 838 N.Y.S.2d 519 (2007) (quotingJ. P. Stevens & Co. v. Rytex Corp., 34 N.Y.2d 123, 128, 312 N.E.2d 466, 469 (1974) [Rytex Corp.]). “Consequently, an arbitrator should ‘disclose any relationship which raises even a suggestion of possible bias. 39 Id. (quoting Kern v. 303 E. 57th St. Corp., 204 A.D.2d 152, 153, 611 N.Y.S.2d 547 (1994). Respondents also argued at the hearing on June 19 that the Arbitrator’s disclosures were sufficient; that they were skeptical that Claimant had only recently learned of the Arbitrator’s undisclosed conflict of interest; and that this arbitration is too far advanced for a party to now attempt to disqualify the Arbitrator. These arguments fail for several obvious reasons. First, the Arbitrator’s disclosures are not just insufficient, but blatantly false. When asked if he “has or has had an attorney-client relationship with a party” in this action, the Arbitrator answered, without explanation or qualification, “no.” To attempt to explain away this false representation, Respondents (and the Arbitrator) pointed to language stating that “it is possible that the [Arbitrator’s prior] firm was aligned with or was adverse to a party in this matter.” (Ex. H.) But stating that it is “possible” that a firm was “aligned with . . . a party in this matter” is a far, far cry from admitting the truth: that the Arbitrator had a direct attorney-client relationship with a named party in this matter for at least five years. (Exs. I-L.) Second, while Respondents are sure to dispute the timing of Claimant’s discovery of the evident conflict of interest, Claimant represents, in the sworn Declaration of Mark Geragos, the following facts: e that Claimant had previously relied on the Arbitrator’s unequivocal statement in his disclosures that there existed no prior attorney-client relationship between himself and any party in this arbitration; e that, after the Arbitrator manifested bias in favor of Respondents in the days before the final hearing, Claimant became concerned about the existence of some undisclosed conflict on the part of the Arbitrator; INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 7 that Claimant’s counsel began researching potential conflicts on the evening of Sunday, June 18, 2023: that that research continued throughout the morning of the hearing on Monday, June 19, 2023; and that Claimant raised the undisclosed conflict at the earliest possible opportunity at the hearing after learning of it. See Ex. Q (Declaration of Mark Geragos). Respondents will also argue that by having arbitrated in good faith on reliance on the Arbitrator’s disclosures, Claimant has somehow waived the right to object to the Arbitrator’s failure to disclose a manifest conflict of interest. But given that the Arbitrator himself assured the parties, in plain terms, that he had no prior attorney-client relationship with any party to this arbitration, Claimant’s reliance is entirely justified and his objections are not waived, since he raised the objection at the earliest possible time after learning of the conflict. Black-Letter Law Requires Disqualification of the Arbitrator An arbitration award may be vacated on the ground of the “partiality of an arbitrator appointed as a neutral.” C.P.L.R. 7511(b)(1)(ii). When it comes to judging the impartiality of the arbitrator, “Tt]hat role is best consigned to the parties, who are the architects of their own arbitration process, and are better informed of the prevailing ethical standards and reputations within their business.” SOMA Partners, LLC, 41 A.D. 3d at 258. “This can only be achieved if, prior to the commencement of the arbitration, the arbitrator discloses to the parties all facts which might reasonably cause one of them to ask for disqualification of the arbitrator.” Id. (quoting Rytex Corp., 34.N.Y. 2d at 128) (emphasis added). Justice White, in his concurrence in Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 151 (1968), elaborated: “The arbitration process functions best when an amicable and trusting atmosphere is preserved ... . This end is best served by establishing an atmosphere of frankness at the outset, through disclosure by the arbitrator . . . . In many cases the arbitrator might believe the business relationship to be so insubstantial that to make a point of revealing it would suggest he is indeed easily swayed, and perhaps a partisan of that party. But if the law requires the disclosure, no such imputation can arise. And it is far better that the relationship be disclosed at the outset, when the parties are free to reject the arbitrator or accept him with knowledge of the relationship and continuing faith in his objectivity, than to have the relationship come to light after the arbitration, when a suspicious or disgruntled party can seize on it as a pretext for invalidating the award.” Notably, in SOMA Partners, the Appellate Division found that the arbitrator improperly failed to disclose an even more insubstantial relationship than that at issue here. In that case, the arbitrator was a private practitioner at the New York office of a large law firm who was assigned through INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 8 the American Arbitration Association. SOMA Partners, 41 A.D.3d at 257. He circulated the conflicts list through his large firm, including Toucan Capital Corp. and Linda Powers, both nonparties. Id. The arbitrator received a response from an “of counsel” in the firm’s Washington office stating that, through his service as a member of the board of directors of the Maryland Technology Development Corporation (Tedco), a quasi-governmental agency, he personally knew Powers, and that Tedco had contractual and investment relationships with Toucan Capital. Id. The arbitrator made no further inquiry and informed the parties that he had no conflict to disclose. Id. The Appellate Division found that this connection between the Arbitrator and nonparty witnesses “was not so insignificant that he could dispense with disclosure, and therefore the arbitration award must be vacated and a new arbitration conducted.” Id. at 259. That case involved an arbitrator’s failure to disclose a far more insubstantial relationship than has been discovered here. In SOMA Partners, the arbitrator’s award was vacated for failure to disclose the fact that the arbitrator’s colleague from a different office knew and had some business with nonparties who were tangentially involved in the case. Here, by contrast, the Arbitrator has failed to disclose a preexisting direct attorney-client relationship between himself and one of the Respondents. Given what Claimant has now learned about the inaccuracy and incompleteness of the Arbitrator’s disclosures, he cannot proceed with the arbitration: “If a party goes forward with arbitration, having actual knowledge of the arbitrator’s bias, or of facts that reasonably should have prompted further, limited inquiry, it may not later claim bias based upon the failure to disclose such facts.” Rytex Corp., 34 N.Y. 2d at 129. “While such responsibility to ascertain potentially disqualifying facts does rest upon the parties, the major burden of disclosure properly falls upon the arbitrator. After all, the arbitrator is in a far better position than the parties to determine and reveal those facts that might give rise to an inference of bias.” Id. The Arbitrator’s Evident Bias Provides Additional Grounds for Disqualification Immediately upon learning of the obvious conflict of interest that the Arbitrator had failed to disclose, Claimant’s counsel advised the Arbitrator of the conflict and stated on the record that Claimant intended to move to disqualify the Arbitrator for cause. In one of the most shocking decisions in the three-decade legal career of the undersigned, the Arbitrator began to argue with Claimant’s counsel, claiming that his disclosures were sufficient and that he could retain jurisdiction. Worse still, after Claimant advised the Arbitrator of his motion and that the Arbitrator must immediately adjourn the hearing, the Arbitrator directed the parties that the hearing would nevertheless proceed and that the Claimant must make his opening statement. The idea that the Arbitrator, having been advised of a blatant conflict of interest that he had failed to disclose, would direct the parties to proceed with the hearing is a manifestation of obvious bias on the part of the Arbitrator. To be clear, the Arbitrator was advised that he had had a preexisting attorney-client relationship with one of the named parties in this arbitration and his continued service as arbitrator was being challenged for cause. But the Arbitrator decided to proceed INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 9 anyway, apparently intending to preside over and issue a final award in a matter involving his own former client. In other words, the Arbitrator has taken the role of judge, adverse party, and opposing counsel, by arguing the merits of this motion with Claimant’s counsel, and then ruling on it by finding that he had jurisdiction: ARBITRATOR SONNENBERG: All right. So with respect to your intent to file a motion to disqualify -- MR. GERAGOS: Correct. ARBITRATOR SONNENBERG: oo think that my disclosufes were previously made. And if you wish to 16 file a motion to disqualify, then a1 that's your prerogative. 12 MR. GERAGOS: Correct. rll a5 have it filed today. Ex. R, at 72. 17 MR. GERAGOS: I'm requesting we 18 not continue because I just looked and 19 it does not look like there was a 20 previous disclosure. 21 ARBITRATOR SONNENBERG: Okay. 22 Well, you're referring to a firm that 23 I used to be with, and I think that 24 the disclosures were appropriate. But 25 if you feel you need to file a motion, FILED: NEW YORK COUNTY CLERK 1070672023 01:30 PM INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF 10/06/2023 JAMS June 19, 2023 Page 10 1 CONFIDENTIAL - VOLUME I - ROUGH DRAFT 2 then that's your prerogative. Id. at 72-73. ARBITRATOR SONNENBERG: All right. I refer all counsel to the 10 disclosures, that I made on April 19, ik 2022, including a response to 12 Question 4D. 13 I'm ready to proceed. I have 14 jurisdiction here. I don't have any 15 order telling me that I do not have 16 jurisdiction. ae I understand you wish to make 18 motions, and that's your prerogative. 19 We'll continue. I will, 20 however, not take witness testimony 21 today. I will proceed with opening 22 statements. 23 We're ready. Id. at 78. By not only arguing the merits of Claimant’s disqualification motion, but arguing the merits and then ruling on that question by finding that his own disclosures were adequate and that he could retain jurisdiction, and then ordering the parties to proceed with opening statements, the Arbitrator demonstrated startling bias against Claimant and in favor of Respondents. Indeed, he should be disqualified because his conduct in attempting to act as opposing counsel and judge on his own disqualification issue shows “he will be either deaf to the testimony or blind to the evidence INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 11 presented” in the hearing. Matter of Excelsior 57th Corp. (Kern), 218 A.D.2d 528, 530, 630 N.Y.S.2d 492, 494 (1995); see also Santana v. Country-Wide Ins. Co., 177 Misc. 2d 1, 6, 675 N.Y.S.2d 817 (Civ. Ct. 1998), aff'd, 184 Misc. 2d 294, 714 N.Y.S.2d 854 (App. Term 2000) (‘[W]here the challenged arbitrator, instead of referring the final determination of the disqualification issue to the [arbitration association], made his own call, he has, in effect, . . . thereby exceeded his power”) (quotation omitted). Even if the Arbitrator had not previously demonstrated bias in favor of Respondents, now that Claimant has raised and argued this motion before the Arbitrator, challenging the adequacy of the Arbitrator’s own disclosures and jurisdiction, Claimant could not possibly expect to receive a full and fair hearing on the merits before this same Arbitrator. There is simply no path forward except to disqualify Arbitrator Sonnenberg and appoint a new arbitrator following the JAMS appointment rules. “The proper standard of review for the disqualification of arbitrators is whether the arbitration process is free of the appearance of bias.” Rabinowitz v. Olewski, 100 A.D.2d 539, 540, 473 N.Y.S.2d 232, 234 (1984) (citing Commonwealth Corp. v. Continental Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968)). Here, the bias of the Arbitrator is manifest both as a result of his existing attorney-client relationship with a named party in this action, and because his actions on learning of the conflict demonstrate that he cannot be impartial in this matter. Conclusion: Arbitrator Sonnenberg Must Be Disqualified In sum, the Arbitrator’s own course of conduct in the final days before the hearing gave Claimant grave concerns about his ability to be impartial, leading Claimant to investigate the existence of any undisclosed conflicts. Claimant found an undeniable conflict of interest that was never disclosed by the Arbitrator, and raised an appropriate objection at the earliest opportunity. The Arbitrator then attempted to argue the merits of that objection, acting as his own advocate (and Respondents’ advocate) before ruling on it himself. His actions give rise to an appearance of bias that cannot be dispelled, especially in light of the actual existing attorney-client relationship between the Arbitrator and a named party in this action. He must be disqualified. Claimant’s counsel files this motion only reluctantly, as their preference would be to go forward with the case they have spent months preparing. But Claimant’s counsel is ethically obliged to go forward only when they can be assured that Claimant will receive a full and fair hearing on his claims. Claimant’s counsel has worked at a feverish pace on this issue since learning of it only a short time ago, and has come to the unavoidable realization that, once Claimant’s counsel had become aware of the indisputable and undisclosed conflict of interest and the actual demonstrated bias on the part of the Arbitrator, Claimant’s counsel had no choice but advise Claimant to respectfully ask JAMS to grant his motion to disqualify Arbitrator Sonnenberg from continuing to serve as arbitrator in this action, pursuant to Rule 15(i). This letter does not constitute a complete recitation of all the facts and circumstances related to this matter. It is not a waiver of, or prejudice to, any of our client’s rights, remedies or claims at INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 JAMS June 19, 2023 Page 12 law or in equity. They are all expressly reserved as is our client’s attorney-client privilege and attorney work product, among every other privilege. Very truly yours, FREEDMAN + TAITELMAN, LLP Bryan J. Freedman cc: Service List (Excluding Neutrals) iD: YORK OUN PK 06 DM INDEX NO. 652945/2023 NYSCEF BOC. NO. 95 RECEIVED NYSCEF: 10/06/2023 EXHIBIT A INDEX NO. 652945/2023 (FILED: NEW YORK COUNTY CLERK 1070672023 01:30 PM NYSCEF DOC. NO. 95 RECEIVED NYSCEF 10/06/2023 JAMS ARBITRATION NEW YORK, NEW YORK CHRISTOPHER CUOMO, an individual, Claimant, Vv. TURNER SERVICES, INC.; CNN AMERICA, INC., JAMS Case No. 542000185 Respondents. TURNER SERVICES, INC.; CNN AMERICA, INC., Counter-Claimants, Vv. CHRISTOPHER CUOMO, an individual, Counter-Respondent. DECLARATION OF NATASHA W. TELEANU Pursuant to Order No. 34 and without waiver of the attorney-client privilege or work product rule, I confirm that I, along with assistance from my team, have checked with Respondents and all members of Respondents’ team, including, without limitation, attorneys, paralegals, public relations, and communications personnel, and each of those individuals attested that no one has directly or indirectly or otherwise disclosed to any member of the media or other third party any documents or information designated Confidential or Highly Confidential under the Protective Order, or any other non-public information regarding the upcoming hearing, including the parties’ witness lists. During the June 14, 2021 conference with the Arbitrator, Claimant’s counsel asserted that 1 (FILED: NEW YORK COUNTY CLERK 1070672023 01:30 PM INDEX NO. 652945/2023 NYSCEF DOC. NO. 95 RECEIVED NYSCEF 10/06/2023 Matt Dornic, CNN’s former Head of Strategic Communications, had “leaked” information to the reporter who wrote the June 11, 2023 article titled How Warner Used CNN to Lobby Andrew Cuomo. Claimant’s counsel is wrong. The reporter contacted Mr. Dornic on June 8, 2023, via text and already knew the Confidential information. The reporter texted: “Hey question for you: I’m writing a piece about the upcoming Cuomo/CNN arbitration. I have some details that I think are likely to come up, but I’m also noting it’s coming at a strange and possibly damaging time for the network. I’m going to mention in the piece that you’re a witness, and I wanted to see if there was anything you thought I should include. Give me a call if you have a sec?” They spoke, and when the reporter asked Mr. Dornic for comment, Mr. Dornic told him he could not respond at all. In addition, the reporter told Mr. Dornic “I have messages” between Ann Sarnoff, Governor Cuomo, and Allison Gollust trying to set up meetings about re-opening theaters. The reporter asked Mr. Dornic if he knew about that topic, and Mr. Dornic responded that he had no idea what that meant. I declare under penalty of perjury that the foregoing is true and correct. Dated: June 16, 2023