NRA V. WINSTON & STRAWN
ABOUT THE NRA'S CASE
The NRA is currently involved in a legal dispute with Winston & Strawn ("Winston") and Jams, Inc. ("JAMS").
According to legal filings, during a recent JAMS arbitration, the NRA discovered on the eve of trial that the arbitrator, retired Judge Richard Neville, was part of a secret email discussion group -- along with a senior partner of opposing counsel, Winston -- where "lurid white nationalist propaganda was shared and promoted."
The NRA has filed suit to recover funds expended throughout the tainted arbitration proceeding and to uncover facts about the extent and effect of the bias.
Background
To resolve a confidential dispute, the NRA and Winston's client agreed to conduct an arbitration. The parties selected Judge Neville to president. Like any litigant in any arbitration, the NRA expected a fair, neutral hearing of its claims and defenses by a fit arbitrator and paid considerable fees to that end. The NRA relied on JAM's assurances that disclosures about any potential biases or conflicts would be made upfront. Unfortunately, the NRA argues that it did not get what it bargained for.
On June 20, 2020, the NRA's outside counsel in the arbitration received a surprising email from Judge Neville. Directed to 39 recipients, including Winston partner Terry Grimm and another JAMS arbitration, Judge Neville's email shared a "toxic rant, sourced from a hate group known as American Renaissance, that portrays Black Americans as an immutably inferior population." Along with the essay, Judge Neville forwarded a comment, apparently from another acquaintance, that described it as a "very well written assessment of the situation in [the] USA."
According to a legal filing, when NRA counsel "condemned the email and asked to be removed from the chain, she received a series of condescending replies faulting her for her closed-mindedness. Realizing he had accidentally copied her, Neville scrambled to cover his mistake, emphasizing that the email was intended for an intimate group of decades-long golf 'buddies' who were 'mostly men.'"
“Of course, had the NRA known about Neville’s connection to Winston—let alone that his friendship with Grimm was so intimate that Neville felt comfortable sharing white supremacist material without risk of discovery—the NRA would not have agreed to have its rights adjudicated by Neville,” the NRA’s lawyers wrote.
Judge Neville has been removed from the arbitration proceeding. Nonetheless, on July 29, 2020, the NRA filed suit against Winston and JAMS.
“The NRA seeks reimbursement for the fees and expenses it incurred during an arbitration that now needs to be redone from the beginning,” said William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA. “After almost seven months of pretrial proceedings, it became clear that the proceedings were corrupted from the outset by an arbitrator that was neither neutral nor fit for the position he held.”
The NRA contends that Winston has "largely rebuffed" its inquiries into the history and extent of Judge Neville's ties to Winston.
“The NRA is a civil rights organization. As such, we have zero tolerance for bigotry,” said NRA CEO & EVP Wayne LaPierre. “Furthermore, the non-disclosure regarding the personal relationship between the arbitrator and our opponent’s counsel is deeply concerning. It is shameful they would now stonewall the pursuit of the facts. Looking the other way is simply not an option.”
NRA Scores Legal Win Against Winston
On October 21, 2020, the judge presiding over the case, Judge Robert R. Rigsby, ruled that the NRA's claim for unjust enrichment against Winston will proceed. Judge Rigsby wrote, “…NRA points out that it ‘has made tens of thousands of dollars in payments to JAMS and incurred additional expenses in connection with the Arbitration,’ which will have to start again and ‘each of [Judge] Neville’s rulings will need to be reconsidered de novo’ and that its expenses for a flawed and incomplete arbitration should be returned.”
The Court concluded that the “NRA has sufficiently stated a claim for unjust enrichment against Defendant Winston” and that “[a]ccordingly, Count II of NRA’s complaint should not be dismissed.”
“We appreciate the prompt attention of the Court – and look forward to bringing the facts regarding Winston & Strawn’s undisclosed relationship with Judge Neville into full public view,” said Brewer. “This is a disturbing record. There should be no place in the legal profession that tolerates such racist communications – or which turns a blind eye to the principles that govern the sanctity of the arbitration process.”
Unfortunately, the opinion also granted JAMS’s motion to dismiss – on grounds that the arbitration organization, which has decried Neville’s communications as racist, nonetheless benefits from arbitral immunity. The NRA will appeal.
“Our client believes that immunity should not apply in these circumstances,” Brewer says. “Companies such as JAMS are commercial enterprises which sell services based upon promises of integrity, consistency and neutrality. We believe that to allow these high-flying businesses to say one thing and then do another is bad for litigants and the profession as a whole.”
The NRA’s legal action has sparked a call for greater oversight, transparency, and accountability surrounding the actions of arbitrators. Crediting the NRA’s lawsuit, on September 8, 2020, the National Employment Lawyers Association (NELA) called for a review of the records of all JAMS’ neutrals, the creation of a more rigorous initial vetting process of arbitrators, and enhanced hiring practices, among other needed industry reforms.
