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STATEMENT OF TAE CASE MELA adopts Defendant-Appellee Randi Simmons' stalment of the case. STATWdEWl! OF THE EACTS MELA adopts Simmons' statement of the facts. S-Y OF THE ARGUMENT The Supreme Court held, in Preston v. Ferrer, that an arbitration agreement between private parties is powerless to divest the enforcement authority of a governmental agency acting in the role of a prosecutor. would be similar to requiring the police and District Attorney not to investigate and prosecute criminal actions, based on side-agreements imposed on victims. agency is acting solely in the capacity of a neutral arbiter, then its role may be supplanted by arbitration. However, when an agency is acting as a prosecutor, protecting the public health and welfare, arbitration agreements between the private parties does not interfere with the government's police power. (8-11) A contrary rule When an Likewise, in EEOC v. Waffle House, Inc., the Supreme Court held that a private arbitration agreement will not undermine an enforcement action initiated by the Equal Employment Opportunity Commission (''EEOC") . The Court protected the EEOC's role for many reasons, including that the EEOC enforcement action was prosecuted in the EEOC's name, the EEOC sought relief in the public interest, the EEOC controlled the contours of the case and the relief 3
sought, and the GEOC did not sign the arbitration agreemcnt. (12-14) . The Massachusetts Comrni.ssion Against Discrimination is Lrhe Commonwealth's anal.ogue to the FEOC, and the MCAD prosecutes c. 153.8 cases in a manner similar to the EEOC. The MCAll is thc Conunonwealth's primary enforcer of c. 151B, and c. 151H represents the Commonwealth's overriding public polj.cy. The MCAU prosecutes section 5 actions in its own name, and in the public interest. It is the MCAD that controls the course of the litigation, permits and pursues discovery, frames the issues to be decided, seeks remedies to satisfy the public's interest in the claim, and enforces the decisions. Finally, the MUD did not sign the arbitration agreement, and therefore, the agreement is not binding upon it. (24-19) The Supreme Court has identified eleven factors on which it based its detominatien that prosecuting agencies are immunized from compelled arbitration. A review of the law and regulations demonstrates that the MCAD falls within each of these factors, and should likewise be protected. Furthermore, enforcement of the arbitration agreement would considerably undermine the MCAD's protective function, and undcnine the c. 151B enforcement scheme. (20-24). The Federal and Massachusetts arbitration acts do not apply, because the MCAD did not sign the arbitration agreement. (14). Moreover, enforcement of the arbitration agreement would have an enormous, real-world effect in 4
Page 1: COMMONWEALTH OF MASSACHUSETTS SUPRE
Page 4 and 5: - 11. MASSACHUSETTS PUBLIC POLICY I
Page 6 and 7: EEOC V. Waffle House, InC., 122 s.
Page 8 and 9: Wal.ker v. Lakewood, 272 F.3d 1114
Page 10 and 11: 1. STATEMENT OF ISSUES siyned by th
Page 14 and 15: undermining the many cases pursued
Page 16 and 17: ARmJmwr The Massachusetts Employmen
Page 18 and 19: MCAD to enforce the law and rectify
Page 20 and 21: Labor Comissioner serves simply as
Page 22 and 23: The Supreme Court held that the arb
Page 24 and 25: The MUD was established to enforce
Page 26 and 27: If the private parties agree to res
Page 28 and 29: case in suppori of the Complainant,
Page 30 and 31: Stonehill College, 141 Mass. at. 56
Page 32 and 33: comprehensive scheme to combat disc
Page 34 and 35: een imposed? Or otherwise assure th
Page 36 and 37: G. JOULE'S OTHER ARGUMENTS ARE OFF-
Page 38 and 39: to create a stumbling block. The tr
Page 40 and 41: Moreover, the MCAD wrote in its ami
Page 42 and 43: and remedy violations of the statut
Page 44 and 45: up the substantial right to seek ad
Page 46 and 47: 2. The Threat To Reject. Simmons' F
Page 48 and 49: Components, Inc., 548 F.2d 24, 26 (
Page 50 and 51: nursing home contract was ruled enf
Page 52 and 53: When an employer says, "waive your
Page 54 and 55: Vokovich, 720 F.2d 909, 925 (8th Ci
Page 56 and 57: coerced"). It is up to state law to

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