Interim Rulings By An Arbitrator Are Not Reviewable Until A Final Award Is Issued.
Charlotte Kirk, an actress, entered into a confidential settlement agreement in 2017 with four men who were entertainment industry executives. The agreement contained an arbitration clause. Claiming that Kirk violated the settlement agreement, the executives filed an arbitration demand naming Kirk, her fiance Neil Marshall, and two other respondents, and obtained from an emergency arbitrator injunctive relief to enforce confidentiality provisions and to prevent the filing of a lawsuit that would make confidential information public. Kirk and respondents filed a petition in superior court to vacate the preliminary injunction. The court denied the petition because the preliminary injunction was not an appealable final award, and the Court of Appeal affirmed. Kirk v. Ratner, B309880 (2/7 2/10/22) (Perluss, Segal, Feuer).
Cases teach that, "in the context of a series of rulings . . . a particular ruling is an ‘award’ only if that ruling (1) ‘determine[s] all issues that are necessary to the resolution’ of ‘“the controversy”’ being subject to arbitration, and (2) leaves unresolved only those ‘issues’ that are ‘potential,’ ‘conditional’ or that otherwise ‘could not have been determined’ at the time of the ruling.” In Kirk, the Court of Appeal concluded that there was no "award."
COMMENT: Apparently the confidential settlement agreement in Kirk settled, among other things, "Kirk’s claims of sexual harassment, infliction of emotional distress and defamation." Perhaps this explains why the entertainment executives did not want the allegations appearing in public pleadings. And there may have been other motives for keeping other information confidential, e.g., whether money changed hands as part of the settlement, and if so, how much money. These are common reasons for moving claims of sexual harassment into arbitration, and cloaking the arbitration proceeding in confidentiality. In February 2022, Congress moved to end forced arbitration of sexual assault and sexual harassment claims by amending the Federal Arbitration Act. See the February 17, 2022 post by the Procopio law firm.
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