"THE UNDERSIGNED ARBITRATOR --- in accordance with the
arbitration provision in Section 8 of the Contract For Employment Agreement As
General Counsel Between Marc J. Randazza and Excelsior Media Corp., dated
June 6/10,2009 ( consideration of the evidence, the parties' written submissions and applicable
law, and good cause appearing--- make the following findings, conclusions,
determinations ("determinations") and this Interim Arbitration Award, as
follows:
(employment agreement ), and based upon careful
DETERMINATIONS
1. The determinations in this Interim Arbitration Award include
factual determinations by the Arbitrator, which the Arbitrator has determined to
be true and necessary to this award. To the extent that the Arbitrator's
determinations differ from any party's positions, that is the result of
determinations as to relevance, burden of proof considerations, and the weighing
of the evidence.
2. The Arbitrator has jurisdiction over the subject matter and over the
parties to the arbitration which are as follows: Claimant and Counter-
Respondent Marc J. Randazza ("Mr. Randazza"), Respondents and
Counterclaimants Excelsior Media Corp. ("Excelsior"), Liberty Media Holdings,
LLC ("Liberty''), and Respondent Jason Gibson.
3. On February 9, 10, 11, 12 and 13, 2015, the Arbitrator held in-person
evidentiary sessions on the merits of the parties' respective claims, counterclaims
and contentions. All witnesses who testified did so under oath and subject to
cross-examination. All offered exhibits were received in evidence.
4. This Interim Arbitration Award is timely rendered. See Order of June 1, 2015.
5. The following is a summary of the Arbitrator's principal merits
determinations:
Except as otherwise stated or indicated by context, "E/L" shall be used to reference
Excelsior and Liberty, collectively and interchangeably for convenience in this Interim
Arbitration Award, only. Nothing should be inferred or implied that there is any
determination, or basis for any determination, that either or both of those entities are
"alter egos" of Jason Gibson or of any person or entity.
Mr. Randazza failed to sustainhis burden of proof that either Excelsior or Liberty were or are "alter egos" of
Respondent Jason Gideon or of any person or entity. Mr. Gideon will be dismissed as a
party in this arbitration. See Interim Arbitration Award, Par. 9, at p. 29, infra .
2.
A. Mr. Randazza voluntarily ended his employment by Excelsior and Liberty.
B. Mr. Randazza's employment by Excelsior and Liberty was not involuntarily terminated by Excelsior, Liberty or at alP
C. Whether or not Mr. Randazza's employment by E/L was terminated voluntarily by Mr. Randazza or involuntarily by E/L, the principal proximate cause for the ending of Mr. Randazza's employment was Mr. Randazza's
breaches of fiduciary duty and the covenant of good faith and fair dealing, implied in his employment agreement, as an employee, executive and general counsel of E/L.
The precipitating events which led to the end of Mr. Randazza's employment was Mr. Gideon's having first learned on August 13, 2012 that Mr. Randazza had been involved in and successfully concluded negotiations for
a bribe in the amount of $75,000, to be paid to Mr. Randazza by the other side in connection with resolution of high-importance litigation, commonly referred to as the "Oron litigation," which had been initiated and pursued on behalf of E/L by Mr. Randazza, as E/L's counsel of record.
The first indication of that was Mr. Gideon's noticing a provision included in an
execution copy of an Oron settlement agreement, presented to him for signature by Mr. Randazza on that date, and Mr. Gideon's inquiring of Mr. Randazza about that provision.
After initial contacts with Mr. Randazza concerning what Mr. Gideon discovered in the Oron settlement agreement, communications and relations between Messrs. Gideon and Randazza noticeably chilled during Mr. Randazza's remaining employment, which ended on August 29,2012.
2. While not accepting Mr. Randazza's "core contentions" concerning the end of his employment by E/L, the Arbitrator agrees with Mr. Randazza's assertion that "The nature of Mr. Randazza's departure from Excelsior is cenh·al to several of his causes of action, and crucial to the defenses Respondents raise" --- including whether there was a breach of contract, wrongful termination, constructive termination and/ or retaliatory termination. Reply at p. 7:12-15. As also stated elsewhere herein, none of those claims were proven.
3. The chilled relations, including greatly reduced communication, was in stark contrast with the custom and practice of Messrs.
Gibson and Randazza, practically right up to August 13, 2012, being in regular, frequent, cordial and occasionally
sexually-peppered communication with each other by face-to-face meetings, texting and emails.
That Mr. Gideon's reaction was not feigned or a pretext for anything asserted by Mr. Randazza in his competing narrative are shown by the following:
1. A sudden and significant reduction of those previously primarily electronic (i.e., email and text) communications --- beginning only after Mr. Gideon learned of the $75,000 bribe--- with Mr. Randazza sending Mr. Gideon unresponded-to emails attempting to attempting to salvage and revive his communications and relationship with Mr. Gideon.
2. Mr. Randazza beat a hasty retreat, in an attempt to salvage the situation by offering to pay the bribe money over to E/L, when initially confronted by Mr. Gideon concerning the bribe provision in the Oron settlement agreement, presented for Mr. Gideon's signature.
3. Mr. Gideon did not timely sign the execution copy of the Oron settlement agreement, as negotiated and presented to him by Mr. Randazza.
D. The ending of Mr. Randazza's employment E/L was not --- as contended by Mr. Randazza --- (1) constructive discharge, proximately caused by Mr. Gibson becoming distant and out-of-communication with Mr. Randazza, which made it difficult or impossible for Mr. Randazza to get needed instructions or direction in his employment byE/Las their general counsel, leading to Mr. Randazza's employment, or (2) retaliatory termination, which was caused by Mr. Randazza
having expressed his feelings of having been upset, betrayed, offended, and August 29, 2012 email of resignation from stressed" anything of a sexual nature whatsoever--- including, as highlighted
during hearing,
a pornographic video shot in Mr. Randazza's office in April, 2012 or a homosexual oral copulation allegedly performed by Mr. Gideon and another ElL executive in the backseat of Mr. Randazza's car, which allegedly greatly upset Mr. Randazza while he was driving his passengers back from a party aboard Mr. Gideon's boat on August 9, 2012.
E. The immediately foregoing Determination's repeated use of the word "allegedly" is because it is not necessary to resolve a conflict of evidence as to whether the alleged sexual act in Mr. Randazza's car actually occurred or the degree of upset it caused Mr. Randazza, if it actually occurred. That is because the Arbitrator has determined that--- contrary to Mr. Randazza's central contentions in this arbitration--- the factual and legal cause of the end of Mr. Randazza's employment had nothing whatsoever to do with anything having to do with alleged sexual activity in Mr. Randazza's car--- alone or taken together with a pornographic shoot which, without dispute, occurred in his office,
without prior notice to Mr. Randazza, but which the evidence shows did not occur as alleged, was not strongly or even negatively reacted to by Mr. Randazza as initially alleged and did not, as shot or shown, include a photograph of Mr. Randazza's family, as initially presented by Mr. Randazza.
The foregoing determination includes that anything relating to sex ---including in connection with a filmed video in Mr. Randazza's ElL office or in the back seat of his car--- had nothing whatsoever to do with any decision --- which the Arbitrator has determined was neither made or considered --- to terminate Mr. Randazza's ElL employment. 2012.
There was no ElL contrived pretext or any retaliation by ElL in connection with the cessation of Mr. Randazza's ElL employment, which was entirely voluntary on Mr. Randazza's part.
For those reasons, the Arbitrator has determined that Mr. Randazza
failed to sustain his burden of proof required to establish his claims of and relating to anything having to do with sex --- e.g., sexual harassment, hostile work environment, constructive termination, retaliatory termination, etc.
F. As stated above --- and as picked up and amplified later in the Determinations portion of this Award--- since the outset of the arbitration,
Mr. Randazza made highly-charged, sexually-based "core allegations" and his claimed strong reactions to them in support of his statutory and contractual claims, which were in the main disproved or not proved. That failure of proof undermined and
impaired Mr. Randazza's credibility concerning all of his testimony and his claims and related contentions.
The evidence established at hearing was that Mr. Randazza intended that his allegations would induce Mr. Gideon to authorize a settlement financially favorable to Mr. Randazza, based on Mr. Randazza's belief at the time--- and ultimately proven incorrect--- that
Mr. Gideon would so settle, rather than have to litigate true or false allegations relating to his own sexuality, sexual activity, and the pornographic nature of E/L's business.
Mr. Randazza's miscalculation, as aforesaid, led to an ultimately successful counterattack by E/L, via counterclaims in this arbitration, centering on ethical and legal challenges to Mr. Randazza general counsel and litigation counsel during his employment by E/L.
Mr. Randazza negotiations with adverse parties, including concerning monetary bribes to conflict (Mr. Randazza) out from future litigation, further damaging E/L recovery in the Oron litigation by knowingly forwarding illegally computer data to counsel for another company, without authorization and in contravention of an E/L settlement agreement, engaging in other prohibited conflicts of interest, including representing competitors of E/L, not disclosing and not obtaining informed written client consents from E/L where actual or potential conflicts of interest arose, working and not disclosing that he was working as a practicing lawyer on non-E/L matters during his employment significantly in excess of what was contractually permitted, spoliation of evidence to cover up the foregoing and his undisclosed intention to resign from employment, including via planning and causing the deletion of legal files and other relevant data from E/L-owned computers, taking control of client funds, in form of Oron litigation settlement proceeds, and refusing to unconditionally release the same to E/L.
G. As stated above, Mr. Randazza voluntarily ended his employment by E/L. The principal evidence of that consisted of (1) Mr. Randazza 2012 email to Mr. Gideon, (2) days before sending Mr. Gideon his August 29 email, Mr. Randazza cleaned out his personal belongings from his office, (3)
shortly after Noon on August 28--- and more than 24 hours before sending his August 29 email to Mr. Gideon--- Mr. Randazza had his corporate laptop computer Wiped the first of four times during his last week of employment, and (4) before that, Mr. Randazza was overheard to say Fuck this shit, I quit/ following a company happy hour event.
H. In his August 29,2012 email to Mr. Gideon, Mr. Randazza stated
that he could no longer represent the Company, i.e., E/L. s In the circumstances
then known, Mr. Gideon and other E/L executives with whom he consulted
reasonably, and not hastily, concluded from their review of Mr. Randazza's
August 29, 2012 email that Mr. Randazza had resigned from his employment.
Their conclusion was proven accurate by facts which became known after Mr.
Randazza's departure. Any actions taken by them based on that reasonable
belief did not result in any involuntary termination of Mr. Randazza's E/L
employment.
I. The lack of absolute,
unquestionable, pristine clarity in Mr.
Randazza's August 29, 2012 carefully worded and crafted email that he was
resigning his employment was deliberate.
J. In addition to Mr. Randazza's disputed, disproved and unproved
allegations of sexual conduct engaged in or authorized by is important evidence
which established that Mr. Randazza was not either (1) a target of any
discriminatory or conduct which created a hostile work environment, because of
his being a heterosexual or "straight" male, or (2) offended by any of the sexually-
related conduct of which he has complained.
K. Prior to and subsequent to agreeing to go "in house" as E/L's
general counsel, Mr. Randazza was outside counsel to several companies
engaged in Internet pornography, including videos and stills available on openly
homosexual websites. Since at least the date of the commencement of his
employment as E/L's inside general counsel through his last day of E/L
employment, Mr. Randazza knew of and was not in any way uncomfortable with
Mr. Gideon's gay sexual orientation--- which was also that of most, but not all,
of E/L's other executives --- and the frequent seasoning of business and socially-
related conversation and written communications
with crude gay and othersexual terms, references and allusions, which Mr. Randazza also used.
Mr. Randazza was not embarrassed to be seen or filmed in full undress at a poolside business-social event at Mr. Gideon's home. Mr. Randazza permitted and encouraged his children to have warm personal relationships with Mr. Gideon, who they called "Uncle."L. The evidence was that the only complaints which Mr. Randazza had concerning the pornographic filming in his offices in April2012 --- four months before the end of his employment--- were that (1) he was not given the courtesy of advance notice of the shoot and (2) after the shoot was completed,
Mr. Randazza's office was not restored to just the way it had been before the office was prepped for filming.
The preponderance of disputed evidence was not that Mr. Randazza complained to Mr. Gideon centering on or in any way reasonably relating to sexual discrimination or harassment or a hostile work environment based on sex, including "male-on-male" sex, which has been recognized as a basis
for a legal claim. Accordingly, allegedly involuntary termination of Mr. Randazza's employment, based on Mr. Randazza's April2012 complaint about the filming of pornography in his office --- which did not constitute statutorily "protected activity" ---is not includible as a component for a statutory claim that he had been fired in retaliation for making that complaint. Mr. Randazza's
complaint about the allegedly personally offensive oral copulation of Mr. Gideon in the back seat of his car on August 9, 2012 was not genuinely or deeply felt and was made primarily for tactical reasons. Therefore, the end of Mr. Randazza's employment was not and was not the product of anything retaliatory, in violation of public policy (e.g., engaging in protected activity), as a matter of law.
Moreover, the preponderance of the evidence is that Mr. Randazza had advance notice of the filming of a pornographic video in his office and that he did not either object or indicate that the noticed shoot was in any way objectionable or offensive to him. That evidence is the playful exchange of texts between Messrs. Randazza and Gideon concerning the intended shoot and the testimony of the director of the shoot, Chaz Vorrias, who testified that he advised Mr. Randazza of the shoot in advance and received no objection from Mr. Randazza.
M. Contrary to the strong impression created by Mr. Randazza's pre-Arbitration Hearing narrative of allegations, there was no evidence that any photograph(s) of his wife or children or anything personal of or concerning Mr. Randazza or any member of his family, or in any way reasonably violative of
their respective personal privacy, were used or visible in the video. The (possible) visibility of a painting on the wall of Mr. Randazza's office, which was painted by Mr. Randazza's wife, is not to the contrary.
In the circumstances, there was no action taken which was either statutorily offensive or hostile.
N. Mr. Randazza's California Labor Code-based claims--- for
Excelsior's failure to (1) pay him his final wages in August 2012 (2nd Claim) or
(2) reimburse and indemnify his for business expenses incurred by him in during
2012 (1st Claim)--- fail as a matter of law. The same is true for Mr. Randazza's
claim for payment of all of his wage-related claims --- including payment of
raises, bonuses and repayment of his $25,000 loan.
That is because--- at all times relevant to those California Labor Code claims, since June 2011, Mr. Randazza worked and lived in Nevada, to which Mr. Randazza relocated, as did E/L, in order to continue as E/L's general counsel. As stated or indicated in a pretrial ruling bearing on the same issue,
(1) the California Labor Code, presumptively, does not apply extraterritorially, and does not apply to the facts and circumstances of this case, and relatedly,
(2) that determination, concerning Mr. Randazza's non-contractual claims, is unaffected by the California-as-governing- substantive-law provision of Mr. Randazza's employment agreement with
Excelsior, which applies and controls only as to breach-of-contract claims and
not, as in this instance, Mr. Randazza's statutory claims.
In the event, Mr. Randazza was properly compensated for all
services as to which he has asserted statutory and contractual claims.
Mr. Randazza's claim for unpaid wages and penalties under
Nevada NRS Sec.608.050 (3rd Claim) fails as a matter of law, because there is no
private right of action for enforcement of that statute. It is therefore not
necessary to decide whether the a claim has been stated under that statute.
P. As to Mr. Randazza's contractual claims--- which are governed by
the Employment Agreement, including the provision that California law governs
its interpretation and enforcement, etc.---
(1) Mr. Randazza is not entitled to a contractual severance payment, because he voluntarily resigned his employment,
(2) Mr. Randazza is not entitled to any payment for expenses in connection with the annual International Trademark Association Conference, which he did not attend, and
(3) Mr. Randazza's bonuses were to be paid on "net" amount, not "gross" amounts, as contended by Mr. Randazza. In the event, E/ L has been legally excused from any obligation to make any further contractual payment, by reason of Mr. Randazza's material breaches of contract with respect
to the his obligations under the same contract, Mr. Randazza's employment agreement. That is so under contract law principles--- separate and apart from equitable principles, which are also applicable to contract claims, including the equitable doctrine of unclean hands, which is applicable to Mr. Randazza's contract claims.
Q. Turning to E/L's counterclaims,
Mr. Randazza owed fiduciaryduties to E/ L, because he was their in-house general counsel and their attorneyof record in judicial civil actions, and an E/L executive and employee.
As such, Mr. Randazza owed E/ L, as his clients, employers and principals,
the highestduty of loyalty and honesty in the performance of his professional and executiveobligations. That duty--- among other things--- included legal and ethicalduties of acting honestly and solely for the benefit of his clients/ employers/ principals, avoiding acting inconsistently with those duties, and where actual or potential
conflicts of interests existed to make full written disclosure of the same and to obtain informed written consents from his
clients/ principals as to each and every such conflict of interest.
Each and all of Mr. Randazza's ethical duties owed to his principals/ clients was a legal fiduciary
duty owed to them. Mr. Randazza violated those fiduciary duties owed by him to E/L, as his principals/ clients/ employers--- including by the following:
(1) engaging in negotiations for monetary bribes to be paid to him--- including
the "Oron $75,000" which Mr. Gideon noticed, without Mr. Randazza's
affirmative disclosure of it ---- which would result in his being "conflicted out" of
future litigation or any disputes with parties then and/ or in the future with
interests adverse to E/L's interests (e.g., Oron, TNA),J3 (2) taking control for his
personal benefit of, and refusing to relinquish control over, Oron settlement
funds --- all of which ought to have been for the benefit and under the direction
and control of his principals/ clients E/L, before and after the end of his
employment and representations on behalf of E/L ---
(3) Mr. Randazza's ordering and causing the deliberate "wiping" of his and legal assistant's
corporate laptops, as an integral part of his planned resignation as E/L's General
Counsel and outside counsel of record, and
(4) Mr. Randazza's continuing and undisclosed (and thus unconsented-to) legal work for clients (e.g., Bang Bros., XVideos, XNXX, Porn Garian, Titan Media, Kink), whose interests were actually
and potentially adverse to E/L's interests.
R. The Arbitrator respectfully disagrees with Mr. Randazza's expert
witnesses, who respectively testified that, under both Nevada and California
rules of ethics and/ or professional responsibility, there were no violations of
fiduciary duty, if and because they concluded that there was no resulting harm.
The "fact of damage" or proximate cause is not an essential element of either "duty" or "breach of duty" ---but rather a separate element of a claim or cause of The Arbitrator's disagreement with Mr. Randazza's expert witnesses centers Whether or not Mr. Randazza's breaches of fiduciary duty proximately resulted in damages sustained by Excelsior, Liberty or both of them ---as a matter of sound public policy--- Mr. Randazza should not be allowed to retain any pecuniary or legal benefit resulting from or closely connected to those
breaches.
For example, Mr. Randazza has included in his defense of his
admitted deletion of files and other legal information via multiple wipings of
company-owned computers the assertion that Respondents have not been able to
show any damage resulting from those multiple wipings. This is another of Mr.
Randazza's assertions in this arbitration of "No harm, no foul"--- which the
Arbitrator has not accepted, primarily because of the violations of duties
constituting and/ or including fiduciary duties. Ethical and other violations of
fiduciary duties do not require "fact of harm" to be shown by a preponderance of
the evidence or otherwise.
Moreover, in the circumstances of (1) multiple ethical violations
having been shown to have been committed by Mr. Randazza ---including
negotiating for and in the instance of the Oron settlement agreeing to a "bribe" to
be conflicted out of future litigation with adverse settling parties and other
conflicts of interest--- and (2) Mr. Randazza's ethical challenges shown in this
arbitration, there should be a presumption of "fact of harm" caused to E/L by Mr.
Randazza's conduct and, additionally, a presumption of Mr. Randazza's
intention to harm his clients by wiping everything off of his and his legal
assistant's company-owned computers.
As E/L's inside general counsel and employee, Mr. Randazza had
a legal and fiduciary duty--- no later than when his employment ceased,
regardless of whether or not with or without cause and/ or by whom ended---
to deliver every file and other piece of data and/ or information--- complete,
intact and undeleted, unmodified and immediately accessible and usable by E/L.
That included all files and data stored on the computers entrusted to Mr.
Randazza and his legal assistant Erika Dillon for their use by and on behalf of
E/L. Because of his noncompliance, indeed resistance to compliance with those
duties, they continued and continue to the day of the rendering of this award---
including beyond Mr. Randazza's belated and resisted turnover of one of the
laptop computers--- because another laptop entrusted to Mr. Randazza remains
unreturned. Those continuing fiduciary duties owed by him to E/L exist,
including by reason of his exclusive control over the computers and thus
superior knowledge of what was on each computer's hard drive before and after
he had everything on the returned laptops completely and multiply deleted ---
including prior and in contemplation of his planned resignation on August 29,
2012.
In the circumstances, Mr. Randazza 's generalized and unspecified
claims of privacy --- in attempted justification of his ordered complete and
multiple wipings of company-owned computers --- cannot be accorded weight or
credibility. By the same token, that ordered conduct raises an inference that
whatever was deleted was known and intended by Mr. Randazza to be harmful
to him and any claims and contentions which he might make in any dispute with
E/L --- i.e., deliberate spoliation, in addition to conversion.
Mr. Randazza cannot escape liability for spoliation or conversion ---
or, additionally, violation of his fiduciary duties as an employee, executive and
general counsel of E/L, by reason of the same conduct --- by claiming, as he has,
that Respondents have not shown any specific or tangible injury by reason of his
conduct in causing company-owned computers to be completely wiped of all
data prior to their resisted and belated return.
In the circumstances--- and paraphrasing former Defense Secretary Donald Rumsfeld ---neither Respondent should bear any burden or responsibility to come forward with any evidence of
damage, when they do not know what they do not know. As stated above--- with his actual exclusive knowledge of what was on the computers' hard drives, before and because he ordered them to be completely wiped and, in the instance of his returned laptop, multiply wiped before ultimate return--- Mr. Randazza committed spoliation of evidence, as well as improper conversion of his
employer's files, data and equipment and, in so doing, also violated his fiduciary
duties owed to E/L.
S. The closure of the Nevada State Bar's file on the grievance filed by
E/L has not been given any weight in this arbitration. The reasons for that are
manifold, several of the most significant of which include the following: (1) the
State Bar did not reach the merits of E/L's grievance, (2) even if it would have,
the standard of evaluation would have been 11 clear and convincing evidence,''
rather than the standard applicable in this arbitration of 11 preponderance of the
evidence, 11 (3) Mr. Randazza's response to E/L's grievance contained at least one
material misrepresentation acknowledged during an evidentiary session in this
arbitration (that he stopped representing XVideos in 2009), (4) the Nevada State
Bar closed its file with an express statement that it has "no authority to take any
action which could affect the outcome of any civil disputes or litigation, (5) many
of the issues and much of the evidence presented in this arbitration (identities of
represented entities, retainer and billing records, emails, etc.) was not available to
be presented by E/Lin support of its grievance (e.g., Mr. Randazza's assisting
Datatech, including via forwarding fruits of a disclosed (unnamed) computer
"hacker").
T. E/L was damaged in at least the amount of $275,000, by reason of
the Oron resettlement, as a direct and proximate result of events being set in
motion by Mr. Randazza's violations of fiduciary duty and other duties, by his
having secretly negotiated a $75,000 bribe to conflict himself out from suing Oron
in the future.
U. Mr. Randazza was unjustly enriched in the amount of $60,000. Of
that amount, $55,000 was paid to and received by Mr. Randazza's law firm,
rather than E/L, in connection with (1) Mr. Randazza's ostensibly pro bono
representation in connection with the so-called "Righthaven cases," of which E/L
was generally aware and consented to (A) with the understanding and on the
condition that Mr. Randazza was acting as a faithful, compensated E/L
employee, including in compliance with his employment agreement, with costs
of the representation advanced by E/L, including compensation as employees of
Mr. Randazza and his legal assistant Erika Dillon, and (2) unaware that
compensation was to be or actually paid to Mr. Randazza, via his law firm, until
after the fact, indeed after Mr. Randazza's resignation from E/L employment.
Mr. Randazza also received $5,000 from James Grady, in connection with E/L's
Oron litigation. Although Mr. Randazza testified, without corroboration, that
Of the $60,000 paid and received, (A) $55,000 was court-awarded attorneys' fees,
which were paid to Mr. Randazza's law firm, and (B) $5,000 was paid by James Grady.
Mr. Grady's payment was used for Oron litigation expenses, Mr. Randazza did
not disclose the receipt of the Grady $5,000 payment to E/L. In the
circumstances, and under principles of unjust enrichment, all compensation paid
to or for the benefit of Mr. Randazza should have been paid directly toE/Lor
turned over to E/L by Mr. Randazza ---neither of which was done, immediately
or ever.
V. Mr. Randazza materially breached his employment agreement with
Excelsior by (1) acting as an attorney in connection with the TNAFlix litigation
and the Mega Upload case, his concurrent representation of XVideos and/ or
XNXX during his employment by Excelsior and (2) spending significantly
excessive time on non-Excelsior/Liberty matters beyond contractually-permitted
time under his employment agreement with Excelsior and by failing to wind
down his non-Excelsior/Liberty legal activities, as also provided in Mr.
Randazza's employment agreement.
The extent of Mr. Randazza's contractual material breaches made
them also breaches of fiduciary duty--- regardless of whether or not those
breaches of fiduciary duty were conflicts of interests, as some were.
W. Disgorgement of compensation paid by E/L to Mr. Randazza is an
available remedy, which is appropriate in the circumstances of Mr. Randazza's
clear and serious violations of fiduciary duty owed to E/L, and within the
Arbitrator's discretion, based on the evidence in this arbitration.
There is no requirement that causation or "fact of damage'' be shown. There is
no valid reason to distinguish between an executive who is "in house" general
counsel and other corporate executives with respect to the availability of the
remedy of forfeiture/ disgorgement of compensation for breaches of fiduciary
duty.
While it might be less easy to determine the appropriate amount of
disgorgement --- because, for example, the compensation paid is not a fixed
percentage, as in an ali-or-nothing legal or brokerage contingency fee
arrangement, contractual hourly arrangements, etc.--- that is not a disqualifying
factor or consideration. Considerations of proportionality and non-overlap with
an award under other remedies are applicable.
Disgorgement will be applied to E/L-paid compensation received
by Mr. Randazza in connection with litigation and other engagements on behalf
of non-E/L clients--- in material breach of contract, while employed byE/Land
beyond the significantly limited scope of his employment agreement (in terms of
subject matter and time) and/ or, in all events, in violation of his professional and
fiduciary duties owed to his principal/ client/ employer, E/L. See Par. l(V),
above.
None of the expert witnesses who testified concerning breaches of
legal ethics and fiduciary duties by attorneys and remedies for such breaches
opined that disgorgement is unavailable in all instances. The Arbitrator had the
sense, however, that Mr. Joseph Garin came close to opining that causation
and/ or "fact of damage" caused by an assumed breach of an ethical/ fiduciary
duty is or should be a prerequisite to the imposition of disgorgement, with which
opinion the Arbitrator respectfully disagrees (if that is Mr. Garin's opinion).2o In
so opining, Mr. Garin (as did Mr. Randazza's California expert witness, Ms. Ellen
Peck) testified that --- based on information provided by Mr. Randazza ---there
was not a single instance of an ethical violation, with which the Arbitrator also
respectfully agrees, based on all of the evidence adduced at hearing.
X. While Mr. Randazza's obtaining Mr. Gideon's signature on the
promissory note for Mr. Randazza's $25,000 loan to E/L for Hong Kong legal
fees was rife with ethical infirmities, in the exercise of the Arbitrator's discretion,
the Arbitrator will not void the underlying loan. However--- again in the
exercise of the Arbitrator's discretion--- the Arbitrator will limit the benefit of
that decision to allowing Mr. Randazza to assert an offset, under this paragraph,
to any and all amounts awarded on E/L's counterclaims, up to a maximum
amount of $25,000 (i.e., no interest)--- which right of offset shall be conditional
upon Claimant's transfer to Respondent Liberty of all Oron settlement-related
and other E/L funds held in Claimant's attorney trust account, plus interest at
the legal rate of ten percent (10%) per annum from August 29, 2012.
Y. E/L are the prevailing parties in this arbitration. As such one or
both of Respondents is or may be entitled to contractual attorneys fees under the
employment agreement.22
INTERIM ARBITRATION A WARD
Based upon careful consideration of the evidence, the applicable law, the
parties' written submissions, the Determinations hereinabove set forth, and good
cause appearing, the Interim Arbitration Award in this arbitration is as follows:
1. Claimant and Counter-Respondent Marc J. Randazza ("Claimant")
shall take nothing by any of his claims set forth in his Amended Arbitration
Demand.
2. Claimant shall pay Respondent(s) the following sums and
amounts, as and for monetary damages in connection with Respondents'
counterclaims. Said amounts are exclusive and non-duplicative of any amount
separately and additionally awarded to Respondents as part of the remedy of
disgorgement. See below.
Said amount includes the amount of $275,000, plus pre-award interest from August 13, 2012, at the legal rate of ten percent (10%) per and for monetary damages in connection with the resettlement of the Oron litigation, as a direct and proximate result of Claimant's violations of fiduciary duty in connection with his negotiating for a $75,000"bribe" (to conflict him out of future representation against Oron) as part of the resolution of the Oron litigation.
Said amount will include the amount of $60,000, by which amount
Claimant was unjustly enriched--- in that Claimant (via his law firm), rather
than either Respondent received (A) $60,000 in connection with Claimant's
ostensibly pro bono representation in connection with the Righthaven cases,
while compensated for Claimant's time spent on the representation as employee,
in the course of his employment, as to which representation the costs were
advanced by Claimant's employer, and (B) received from James Grady in
connection with the Oron litigation.
Said amount will include the amount of $3,215.98 ---as and for
Respondents' expenses reasonably incurred in connection with QUIVX forensic
examination and attempted restoration of data on employer-owned laptop
computers and an iPhone used and returned, as applicable, by Claimant and
Erika Dillon. In addition, an amount yet to be determined, in the exercise of the
Arbitrator of Excelsior laptop computers entrusted to Claimant and Erika Dillon during their
employment by Respondents or either of them. The additional amount awarded
will be set forth in a further and/ or amended interim arbitration award and/ or
in the final arbitration award.
3. Claimant shall pay Respondent Excelsior the amount of $197,000.00
--- as and for disgorgement of an appropriate amount of Claimant's employment
compensation (including salary and bonuses) paid under his employment
agreement).
Disgorgement shall be based on Claimant's violations of fiduciary
duty ---including as acting as an attorney in connection with the TNAFlix
litigation and the Mega Upload case.
XVideos and/ or XNXX during his employment by Excelsior and
spendingexcessive, undisclosed, time on non-Excelsior/Liberty matters far beyondcontractually-permitted time under his employment agreement.4. Claimant is hereby ordered forthwith (i.e., within ten (10) days of
the date of the issuance of this Interim Arbitration Award) to turn over to
concurrent representation of Respondents all Oron-related funds and, further, an additional $30,000 of non-Oron-related client funds of Respondents--- which funds have been held in
Claimant's attorney trust account--- plus pre-award interest at the legal rate of
ten percent (10%) per annum from August 29, 2012.
5. An
accounting of Claimant's attorney trust account is hereby ordered--- including to ensure compliance with Paragraph 4 hereof. The accounting shall be performed by a qualified third-party accountant and/ or accounting firm appointed and/ or approved by the Arbitrator.
The cost and expense of which shall be borne solely by Claimant--- although Respondents
may advance the funds necessary for the accounting, subject to ordered reimbursement by Claimant. Claimant is hereby ordered to cooperate fully with the ordered accounting.
6. Claimant is hereby ordered to return the as-yet-unreturned
company-owned laptop to Respondents' counsel forthwith--- and in no event
later than ten (10) days from the date of the issuance of this Interim Arbitration
Award.
7. Respondent shall be awarded as damages or costs reasonably
incurred with this litigation, expenses reasonably incurred by QVIX or similarly
qualified expert vendor--- up to a maximum of $3,500 ---in connection with the
vendor's performance of successful and/ or attempted retrieval of data a report to
the Arbitrator of what, if anything was deleted from the computer and when.
8. Respondents and Counterclaimants Excelsior Media Corp. and
Liberty Media Holdings, LLC shall be afforded the right in this arbitration to
establish their rights--- if any, and according to proof--- to contractual attorney's
fees and costs.
Counsel for the parties are ordered to immediately commence and
diligently conduct and conclude meet-and-confer communications and to submit
to the Arbitrator within ten (10) days of the issuance of this Interim Arbitration
Award an emailed proposed briefing and hearing schedule for any application
for contractual attorney's fees and costs.
9. Respondent Jason Gideon will be dismissed as a party to this arbitration.
Subject to further order and/ or a further and/ or amended interim
arbitration award, and the Final Arbitration Award, this Interim Arbitration
Award, including the Determinations hereinabove set forth, is intended to be in
full settlement of all claims, issues, allegations and contentions, on the merits,
submitted by any party against any adverse party in this arbitration. Subject to
the immediately preceding sentence, claims and requests for relief not expressly
granted in this Interim Arbitration Award are hereby denied.
Dated: June 3, 2015
Arbitrator
Stephen E. HaberfieldSource
https://drive.google.com/file/d/0Bzn2NurXrSkiMV9xcl9qeVdpSUU/view
