The purpose of this assignment is to help you determine which evidence you would offer in an arbitration hearing. Please read the instructions below and the scenario before answering the questions.
Instructions
Expectation: Using the scenario below, respond to the questions in A-E below. See suggested layout below before responding.
Attempts: As many as you’d like. You may save as a draft and revise before submitting.
Due date/time: 11:59pm Sunday, March 13, 2022
Total points: 100 (1 type of evidence x A-E = 20 points; 20 x 5 = 100)
Writing expectations: Please use correct grammar, spelling, capitalization and punctuation. Please submit your work by attaching a Word document. No other formats are accepted.
Academic integrity: You may discuss this assignment with others; however, you must produce your own work without the assistance of others.
Layout: Given what the questions below contemplate, it’s recommended that you address one type of evidence at a time and address all questions relating to it in one section.
For example:
1. Evidence #1 –
A. Name/type of evidence
B. Reason(s) it should be admissible from Bank’s perspective.
C. How it supports Bank’s case theory.
D. Reason(s) Ms. Slick’s counsel doesn’t believe it should be admitted.
E. If you’re the arbitrator, would you admit this evidence? Of what value is it to you?
2. Evidence #2
A. Name/type of evidence
B. Reason(s) it should be admissible from Bank’s perspective.
C. How it supports Bank’s case theory.
D. Reason(s) Ms. Slick’s counsel doesn’t believe it should be admitted.
E. If you’re the arbitrator, would you admit this evidence? Of what value is it to you?
And so on with evidence #s 3-5.
Questions to Answer
Given what you have read this week in the materials, the revised scenario above and the case theory you described in the week 4 quiz or any revision of it,
A. Identify 5 different types of evidence that you, the Senior Manager of HR, will recommend to the bank’s Assistant General Counsel as you work together to prepare for the arbitration hearing. Please assume that the arbitrator has placed no specific limits on evidence other than the general guidelines that many arbitrators follow. Please be specific in terms of what the evidence actually is and do not simply address the evidence in general terms. Give each piece of evidence a specific number (5 total required) and name. You may create a piece of evidence that you believe could be used even if it’s not explicitly written into the scenario above.
B. Using the general guidelines many arbitrators follow, explain the reason(s) that the evidence you recommend should be admissible and considered by the arbitrator.
C. Explain how the evidence supports your case theory.
D. Using the general guidelines many arbitrators follow and from the perspective of Ms. Slick’s counsel, explain the reason(s), if any exist, that the evidence should NOT be admissible and considered by the arbitrator.
E. If you’re playing the role of the arbitrator, would you admit the evidence and how valuable is this evidence to you in determining your opinion?
Scenario
Ms. Slick is a senior banking executive who was recruited to lead one of the nation’s top national banks. As CEO, Slick is responsible for growing revenues, increasing profits while complying with all laws. Slick was hired because she had successfully turned around another leading national bank and had a reputation for promoting innovative products and services.
As with all CEOs in the banking industry, Slick signed an employment contract that included a variety of provisions, including the following:
Term. This contract shall be enforceable for a period of 5 (five) years, beginning on March 1, 2012. This contract may be renewed for additional terms of 5 (five) years according to the mutual agreement of the parties hereto.
Compensation. Ms. Slick shall be paid an annual salary of $2,500,000, an annual bonus of $500,000 and stock options valued at $2,000,000 annually.
Termination. Ms. Slick’s employment contract may be terminated by Employer for:
(a) good reason, which shall include any reason other than for cause.
In such event, Ms. Slick shall be paid severance compensation, which shall consist of the amounts of annual salary, bonus and stock options that would be paid during the remaining years of the contract’s term.
(b) cause, which includes, but is not limited to, conviction of a felony, embezzlement, theft or gross misconduct connected with her work. If terminated for cause, Ms. Slick shall not be entitled to receive severance compensation, which is defined more specifically in (a) above.
Employer must provide 30 (thirty) days prior written notice of its intent to terminate this contract for cause and permit Ms. Slick thirty (30) days to cure the breach of this contract.
Dispute resolution. Any controversy or claim arising out of or relating to this employment contract shall be settled by arbitration administered by the American Arbitration Association under its Employment Arbitration Rules and Mediation Procedures and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
CEO Slick was thrilled to be on board and her first charge to the Senior Vice Presidents was to identify new and profitable ways to serve customers. The Senior VPs quickly put their teams to work to develop new products, programs and services.
Very little due diligence was done on the proposals. Nate Smith, Senior VP for Customer Complaints, suggested that a focus group be assembled in order to get feedback on new product developments before they were introduced. There were no focus groups. Sandra Dee, the Senior Counsel of the Legal Department, cautioned Ms. Slick on the risk that the new products presented and her concerns about the legality of the Date a Regulator initiative. Ms. Dee’s comments were not well received by Ms. Slick.
Within 2 months, the following new ones were proposed to the CEO and her Senior VPs:
Quick Start – New customers could open checking and savings accounts at bank branches without providing proof of identification or a minimum amount of monthly income. This was well-received and quickly implemented. More than 1M new accounts were opened the first year of this fantastic program. Employees who opened these accounts received a $100 bonus for each account. Branch managers were to report the number of new Quick Start accounts opened each week to the Senior VP, Operations and the CEO.
Date a Regulator – Given the tension between state and federal regulators and the bank (as it is with any national bank), bank finance and audit employees were encouraged to develop romantic relationships, and to a lesser degree, friendships, with state and federal regulators and their family members and friends. The idea was to gain leverage over regulators by having opportunities to interact with them on a personal, private basis to gain a better understanding of how they may perceive the banking sector and its players. Employees were to report their successes directly to the Senior VP of Audit and the CEO.
Welcome to the Dream – Branch employees were required to begin soliciting new mortgage customers in the community by attending area high school and college sporting events. Area real estate agents and brokers teamed up with branch employees to identify prospects. Prospects were encouraged to buy new homes without proving minimum monthly and annual incomes. Overall, the lending process was quite rushed. What prospects didn’t know was that many of the homes that were targeted began to have declining values because they were adjacent to a new county jail under construction. Area real estate agents and brokers did not disclose the construction project and, in fact, avoided questions on the topic. Rumor has it that mortgage officers and real estate agents outright lied when asked directly about surrounding development plans.
Profits grew and customers filled the branches in the first term of the CEO’s tenure. Her employment contract was renewed for an additional 5 (five) years and her compensation package grew to an annual salary of $3,000,000, a bonus of $750,000 and stock options of $3,000,000 annually. Everyone was thrilled. Thrilled until the cracks widened and sunshine poured in.
An employee in the finance department became quite concerned about these programs. The VP of Audit contacted federal regulators to report his concerns as specified by the whistle blower statutes. The audit department routinely accessed details of each of these programs to collect data for the bank’s annual report and the department employees have a detailed understanding of the programs. The audit department produced a variety of graphs and charts that visually explained the new programs.
Employee turnover has increased in the last few years and many who departed were considered “disgruntled”. Doug Denkins is one such employee who now works with a major competitor that does not market similar programs to the ones encouraged by Ms. Slick.
Chaos ensues. Regulators inquire as the U.S. Consumer Financial Protection Bureau (CFPB) issues clarifying regulations about new programs that are appearing on the market. The public is beginning to read about the bank’s business practices as information from audits is leaked to journalists with national publications and networks. The CEO is under extreme public pressure to respond to the allegations that the bank is ripping people off. The CEO is terminated for cause by the bank’s Board of Directors. Ms. Slick disagrees with the Board’s characterization and reasons for her termination and hires an attorney. The attorney demands that the Board reinstate his client for not giving her notice and an opportunity to correct matters or pay her severance. The bank refuses and initiates arbitration proceedings with the AAA.
You are the Senior Manager in the bank’s human resources department and are on the team handling Ms. Slick’s departure and resulting dispute. At this point, the Assistant General Counsel (AGC) has asked you to investigate this matter and work with him to then develop a strategy to defend the termination in arbitration. Your work is well underway. The AGC gives you the opportunity to continue to develop this case. The AGC will review your decisions, so you must be prepared to explain and defend them.
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