Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 2 of 43

Han. Stephen E. Haberfeld

JAMS
555 w. 5th St. sznd FI.
I

Los Angeles, CA 90013

Tel: 213-253-9704
Fax: 213-620-0100

Arbib:ator

JAMS

MARC]. RANDAZZA, JAMS No.1260002283

Claimant, INTERIM ARBITRATION AWARD

v.
EXCELSIOR NIEDIA CORP., a Nevada
Corp.; LIBERTY IYIEDIA HOLDINGSr LLC,
a Califmnia limited liability compru1yi and
JASON GIBSON, individuaJ.ly

Respondents.

I, THE UNDERSIGNED ARBITRATOR--- in accordance with the

arbib:ation 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 ("employment agreement 11), and based upon careful
consideration of the evidence, the parties1 written submissions and applicable
law, and good cause appearing--- make the following findings, conclusions,
determinations ("determinations") and this Interim Arbih·ationAward, as
follows:
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DETERMINATIONS

1. The determinalions in this Interim Arbitration Award include

factual determinations by the Arbitrator, which the Arbih·ator has dete1mined to
be b:ue and necessary to this award. To the extent that the Arbitrator's
determinations diller .6:om any pru-ty's positions, that is the result of
determinations as to relevance, burden of proof considerations, and the weighing
o£ 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
Counterclairnants Excelsior Media Corp. ( 11Excelsior11) 1 Liberty Media Holdings;
LLC (11 Liberf:y 11 ), and Respondent Jason Gibson. 1
On February 9, 10, 11, 12 and 13, 2015, the Arbitrator held .in-person
evidentiary sessions on the merits of the parties 1 respective claims, counterclaims
and contentions. All wih1esses who testified did so under oath and subject to
All offered exhibits were received in evidence.
4. TJtis Interim Arbitration_ Award is tin1ely rendered. See Order o£
June 1, 2015 ..
· 5. The following is a summary of the Arbitrator•s principal merits
determinations:

J Except as of:henvise stated or indicated by context, uE/U' shall be used to reference

Excelsior and Liberty, collectively cmd interchangeably for convenience in this Interim
Arbitration Awat•d, only. Nothing should be inferred or implied that there is any
determination, or basis for any deternlillation, that either m· both of those entities are
"alter egos11 of Jason Gibson or of any person or entity. 1vfx. Randazza failed to sustain
his burden of proof that either Excelsior or Liberty were or are 11alter egos11 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
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A. Mr. Randazza voluntru:ily ended his employment by

Excelsior and Liberty.
B. Mr. Randazza's employn1ent by Excelsior and Liberty was
not involuntarily terminated by Excelsior, Liberty or at alU·
C. W11ether 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 1s breaches of fiduciruy duty and the covenant of good faith and
fair dealing, implied in his employment agreement, as an employee, executive
and general counsel ofE/L. The precipitating events which led to the end of
Mr. Randazza's employment was Mr. Gideon's havh1g first learned on August
13, 2012 that Mr. Randazza h<1d been involved in ru1d successfully concluded
negotiations for a bribe in the runount of $75,000, to be paid to Mr. Randazza by
the other side in connection with resolution of high-importance litigation1
commonly refened to as the "Oron litigation/ which had been initiated and
pursued on behalf of E/L by Mi·. Randazza, as E/L's coU11sel of recmd. 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 inquiling 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 benveen Messrs. Gideon and Randazza noticeably chilled during
Mr. Randazza's remaining employment, which ended on August 29 2012. 1

2While not accepting Mr. Randazza's 11 c0l'e contentions" concerning the end of his
employment by E/L the Arbitrator agrees 1-vith Mr. Randazza's assertion that nTI1e
1

nature of Mt. Randazza's departure from Excelsior is central to several of his causes of
action, and cmcial to the defenses Respondents raise" - including \Vhethe.r there was a
bread1 of contract, wrongful tenninal::ion1 constructive termination and/ or ref:a]jatory
termination. Reply at p. 7:12-15. As also stated elsewhere herein, none of those claims
were proven.

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The chilled relations, including greatly reduced

communication, was in stark conh·ast 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 1·eaction was not feigned or a pretext for
anything assel'ted by 1VIr. Randazza in his competing narrative are shown by the
following:
1. A sudden and significant reduction o£ those
previously primarily elech'Oluc (i.e., email and text) conununications ---
beginning only after Mr. Gideon learned of the $75,000 b!'ibe --with
Mr. Randazza sending Mr. Gideon emails attempting to
attempting to salvage and revive his communications and relationslup
with Mr. Gideon.
2. Mr. Randazza beat a hasty retreat, in an attempt to
salvage the situation by offering to pay the bribe n1oney over to E/L, when
initially confronted by Mr. Gideon concerning the 11 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 1s employment E/L was not--
as contended by Mr. Randazza -- (1) conshuctive discharge.r 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
insh"Uctions or direction in his employment byE/Las their general counsel,
leading to Mr. Randazza1s August 29, 2012 email of resignation £rom
employment/ or (2) retaliatory tennination, which 1-vas caused by MT. Randazza's
having 11 expressed his £eelings 11 of having been 11 upset, beb:ayed, offended, and

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stressed 11 anything of a sexual nature whatsoever- including, as highlighted

during heaTing, a pornographic video shot in Mr. Randazza 1s office in April,
2012 or a homosexual oral copulation allegedly performed by Mr. Gideon and
another E/L executive in the backseat of M:r. Randazza 1s car, which allegedly
greatly upset Mr. Randazza while he was driving his passengers back from a
party aboard Jvir. Gideon's boat on August 9, 2012.
E. The immediately foregoing Determinatiods repeated use of the
word "allegedli' is because it is not necessary to resolve a conflict of evidence as
to whether the alleged sexual act in Mr. Randazza 1s car actually occurred or the
degree of upset it caused Mx. Randazza, if it actually occurred. That is because
the Arbitrator has determined that-- conh·ary to Mr. Randazza's cenh·al
contentions in this arbitration--- the £actual and legaJ cause of the end of Mr.
Randazza's employment had nothing whatsoever to do with anything having to
do with alleged sexual activity in 1v1r. Randazza 1s car--- alone or talcen together
with a pmnographic 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 1Vfr. 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.
TI1e foregoing determination includes that anything 1·elating to sex
in connection with a filmed video in Mr. Randazza's E/L office or
in the back seat of his car-- had nothing whatsoever to do with any dedsion ---
which the Al·bitrator has determined was neither made or considered ---
to terminate Mr. Randazza's E/L employment. 2012. There was no E/L
conh·ived pretext or any retaliation by ElL in connection with the cessation of
Ivfr. Randazza's ElL employment, which was entirely voluntary on

IIIII
IIIII

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Mr. Randazza 1s part.3 For those the Arbib:ator has detemuned that Mr.
Randazza failed to sustain his buxden of proof required to establisl11us claims of
and relating to anything having to do with sex-- e.g., sexuallmrassment1 hostile
work environn1ent1 constructive termination, retaliatory termination/ etc.
F. As stated above- and as picked up and amplified later in the
Determinations portion of this A 1·vard -- since the outset of the Ml·.
Randazza made highly-charged, sexually-based 11 core al1egations 11 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 1s credibility concerning all of his

IIIII
IIIII
IIIII
testimony and Ius claims and related contentions.'! The evidence established at
hearing was that Mr. Randazza intended that his allegations would induce

3 The same is bue with respect to Mr. Randazza's contention(s) that Mr. Gideon 1s
discovery of Mr. Randazza having been involved with and negotiating a $75,000 11 bribe 11
in c01u1ection with a settlement of the Oron litigation was a pretext for an earlier-formed
intention by lvlr. Gideon to end J:vlr. Randazza's E/L employment
Mr. Randazza's credibility was also nndermined by the varim1ce betvveen his· testimony
and positions at l1earing and his vn:itten Nevada State Bar submission concerning the
Oron litigation $75,000 bribe- including what, if ru1ythlng, I\l!r. Gideon knew about it
and wl1en, and who solicited the bribe in the first instance.
Mr. Randazza's credibility was also undermined by the variance between his.
testimony and his EEOC submission. At hearing, Mr. Randazza admitted that the EEOC
complaint contained errors, l1ut hied to explain them away by saying that he did not
prepare it. That is not a sufficient excuse or explanation, in the circumstances.
Resolving a credibility-related issue presented in the post-hearing briefs concemb1g
asserted testimonial evasiveness implied by 1vh·. Randazza 1s body positioning and
whether he had eye contact with tl1e Arbitrator (as asserted by Mr. Randazza in his
Reply), tlu·oughout his extensive testimony at hearing and primarily on cross-
examination, the Arbicrator observed that Mr. Randazza sat sideways in his chair,
relative to Oalinant's counsel's table- ·with his back to (i.e., 180 degrees away from} his
mvn counsel and 90 degrees a\-\'ay from Respondent1s counsel- albeit with his seated
body positioned toward tl1e part of the wall behind and to Mr. Randazza's left from

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Mr. Gideon to authorize a settlement finandally 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 h·ue or false
allegations relating to his own sexualil:yr sexual activity, and the pornographic
nature ofE/L's business. Mr. Randazza 1s miscalculation, as aforesaid, led to an

where the Arbitrator was seated. Mr. Randazza ahnost always to questions and
answered in that position- leaning well fo1ward and looking down or straight ahead
into 11 middle distance 11 in the direction of the wall behind where the Arbitrator was
seated. Mr. Rartdazza rarely answered a question on cross-examination with sustained
eye contact witl1 either the questioning attorney or tl1e Arbih·ator.
The Arbitrator l1as determined, based on tl1e evidence, tl1at Mr. Randazza solicited the
bribe in the first instance, attempted to negotiate with Oren's counsel ways and means
whereby it would be concealed from and not become knmvn by E/L, and disclosed it to
E/L, per Mr. for the first time only on August 13, 2012, when the settlement
documentation prepared and presented for Mr. Gideon's signature on behalf ofE/L by
Oren's counsel surfaced a $75,000 retainer payment to Mr. Randazza.
The Arbitratot· has further determined that E/L never gave Mr. Randazza permission
or consent to solicit, negotiate or accept tl1e $75,000 bribe,* or any bribe or any other
payment other than payment of all proceeds being solely for the benefit of and
deposited to the account of his clients/principals, E/L.
[*On August 13, 2013 Mr. Gideon handwrote an arrow and uwho gets this 11 next to the
1

$75,000 payment provision il1 the C0}1Y of the execution copy of the Oron setl:lement
agreemei1.t presented to him by Mr. Randazza. The Arbitrator credits l:11at notation as
heing first notice to and genuine surprise expressed by Mr. Gideon about any Oron
settlement payment not being made directly to E/ L.
fThat notation also was the genesis of a rapid unraveling of l:11e theretofore close
professional and personal relationship, symbolized by Mr. Gideon's sl1arply reducing
communications with Mr. Randazza and Mr. Randazza's repeated and ultimately
unsuccessful efforts to salvage his situation, by attempting to re-establish direct contact
witl1 M:r. Gideon. As previously stated, tl1e Arbitrator has not accepted :Mr. Randazza1s
central contention and narrative i:l1at th.is state of affairs, h:iggered on August 13,2012,
was manufactured by Mr. Gideon and served as a convenient or other pretext for an
earlier-decided termination of Mr. Randazza's employment..]
The Arbitrator has not accepted i:l1at E/L's knowledge of or infmmed consent to any
such situation can be implied by non-objection and silence in response to an unspecific,
Delphic allusion in one of Mr. Randazza 1s emails prior to August 13, 2012 or to Mr.
Randazza's after-l:he-fact, self-serving reference to alleged earlier communications,
wherein Mr. Randazza dairned in the later email to have "fully disclosed ... overtures
about tl1at"
In addition, except for admissions, anything whicl1 Mr. Randazza and his opposing
counsel in the Oron litigation, Val Gurvitz, communicated to ead1 other lacked
credibility, because Mr. Randazza testified U1at he and lvfr. Gurvitz routinely lied to ead1
ol:11er in tl1eir settlement communications.

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ultimately successful counterattack by E/Lr vja counterclaims in this arbih·ation,

centering on ethical and legal challenges to ivfr. Randazza 1s conduct as E/Us
general counsel and litigation counsel during his employment by E/L. Mr.
Randazza 1s alleged misconduct consisted of engaging in ethically-prohibited
negotiations with adverse parties, including concerning monetary ubribes 11 to
11
conflict (Mr. Randazza)
.
out"
.
from future litigation,
.
further
.
damaging EjVs
.
recovery in the Oron litigation by knowingly forwru:ding illegally 11hackedn
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 Wormed 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 tl1e foregoing and his undisclosed intention to resign from
EjUs employment, includ. ing via planning and causing the deletion of legal files
and other relevant data from E/L-owned computers, talcing control of client
funds, in form of Oronlitigation 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 1s August
29, 2012 email to Mr. Gideon, (2) days before sending Mr. Gideon his August 29
emait Mr. Randazza cleaned out his personal belongings from his (3)
shortly after Noon on August 28 - and mare thru1 24 hours before sending his
August 29 email to Mr. Gideon-- Mr. Randazza had Iris corporate laptop
computer nwiped 11 the first of four times during his last week of employment,
and (4) before that, Mr. Randazza was overheard to say 11Fuck this shit, I quiV
following a company 11 happy hour" e'\,ent.

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H. In his August 29, 2012 email to Mr. Gideon, Mr. Randazza stated
that he could no longer represent the Compru.1y, i.e., E/L. 5 In the circumstances
then known, Mr. Gideon and other E/L executives with whom he consulted
reasonably, and not hastily,6 concluded from their review of Mr. Randazza's
August 29, 2012 email that Mr. Randazza had resigned from hls employment.
Their conclusion was proven accurate by facts wluch became known after Mr.
Randazza's departure. Any actions taken by them based on that reasonable
belief did not result in any involw1tary termination of Mr. Randazza's E/L
employment.
I. The lade of 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 1s disputed, disproved and unproved
allegations of sexual conduct engaged in or authorjzed by is important evidence
which established that Mr. Randazza was not either (1) a target of any
discriminatory or conduct which created a hostile workenvironment, because of
his being a heterosexual or "straight11 male, or (2) offended by any of the sexually-
related conduct of which he has complained.
K. PTior to and subsequent to agreeing to go 11 b.1 house 11 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 \Vebsites. 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 allr

s Mr. Randazza also said he could llpotentially!' work to wind up his E/L pending
matters. The Arbitrator interprets the inclusion of that to be part of Mr. Randazza's
crafted effort to bot11 resign and leave open his attempt to engage Mr. Gideon directly.
6 The Arbib·ator has not accepted Mr. Randazza's assertion that "Respondents hastily

decided to call that [August 29, 2012 email} a resignation." :Mr. Randazza's Reply at p.
7:20-21.

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of E/Vs other executives-- and the frequent seasoning of business and socially-
related conversation and written communications with crude gay and other
sexual terms, references and allusions, which IY.fr. Randazza also used.7 ivir.
Randazza was not embarrassed to be seen or filmed in full undress at a poolside
business-social event at Mr. Gideon's hom.e. Mr. Randazza permitted and
encouraged his childr:en to have warm personal relationships with Mr. Gideon,
who they called 11 Uncle."
L. The evidence was that the only complaints which lvh·.
Randazza had concerning the pornographic filming in his offices in Apri12012 --
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 o£ disputed evidence was not that Mr.
Randazza complained to 1vfr. Gideon centering on or in any way reasonably
relating to se>..-ual discrimination or harassment or a hostile work environment
based on sex, including 11 male-on-male 11 sex, which has been recognized as a basis
for a legal claim. Accordingly, allegedly involuntary termination of Mr.
Randazza1s employment, based on Mr. Randazza 1s April 2012 complaint about
the filming of pornography in his office-- which did not constitute statutorily
11
protected activity 11 ---is not includible as a component for a statutory claim that
he had been fired in retaliation for making that cmnplaint. Mr. Randazza1s
complaint about the allegedly personally offensive oral. copulation of Mr. Gideon

7 For example, 1vir. Randazza admitted that he used the term 11 butthurt11 - which he
alleged that Mr. Gideon used to demean his eA'Pressiqn of feelings about the
pornographic filming mhis office. In a series of texts about the shoot, Mr. Randazza
texted, in a crude possible sexualjlegal 11 double entendre/ 11 Don 1tjizz on my briefs. 11 lvir.
Randazza has admitted that 11 The Arbitrator has seen many texts and ernails from Mr.
Randazza with informal, rough, vulgar content. 11 Reply at p. 10:9-10. In making a
different point, Mr. Randazza concedes by assertion that 11 Respondents [have] conceded
that jokes and banter were conunon h1 the office. 11

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in the back seat of his car on August 91 2012 was not genuinely or deeply felt and
was made primru:ily 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 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 ev1dence 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 6:om 1\ti.r.
Rru1dazza.s
M. Contrary to the strong impression created by Mr. Randazza 1s 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 1s wife, is not to the conh·ary.
In the circumstances, there was no action tal<en ''vhich was
either statutorily offensive or hostile.
N. Ml·. Randazza's California Labor Code-based for
Excelsior's failure to (1) pay him h.is final wages in August 2012 (2nd Claim) or
(2) reimburse and indemnify his for business expenses incuned by him in during
2012 (1st Claim)--- fail as a matter o£ law. The same is true for Mr. Randazza's

s Mr. Vorrias testimony was not mlfair surprise, Mr. Vorrias's admitted deletion of Ius
emails with Mr. Randazza was done 1-vithout knowledge of their significance in
connection 1-vith the dispute underlying tltis arbitration and, in the event/ is not
attributable to eitl1er Excelsior or Liberty/ because he was not a managing agent of either
entity.

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claim for payment of all of his wage-related claims--- including payment of

raises, bonuses and repayment of Ius $25,000 loan. That is because--- at a11 times
relevant to those California Labor Code claims, since June 2011, Mr. Randazza
worked and lived in Nevada, to wluch 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 exh·aterritorially,9 and does not apply to the facts and
circumstances of this case, ru1d relatedly, (2) that determination, concenung Mr.
Randazza's non-conb:actual clailns, 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-o£-contTact claims and
not, as in this instance, Mr. Randazza's statutory clairns.1o
In the event, Mr. Randazza was properly compensated for all
services as to which he l1as asserted statutory and contractual claims.ll
0. 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 1s contractual claims--- which ru:e 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

"Sullivan v. Oracle Corp. ,51 Ca1.4th.1191, 12016 (2011); Wright v. Adventures Rolling
Cross Countrv, Inc., 2012 U.S. Dist LEXlS 104378 {N.D. Cal. 2012) (presumption against
exb·aterritorial application of state law applies to unpaid wage claims under Califontia
Labor Code, plus 11 situs of the work11 is the most important factor in determining
exb:aterritoriality, bumping residency and where wages are paid).
10 See, e.g., Naravan v. EGL. Inc., 616 F.3d 895, 899 (9th Ci.r. 2010).
11 For example, Mr. Randazza s bonuses were to be based on net and gross a_rnounts
1

(whicl1 he acknowledged priol' to the end of his employment), claimed compensation

raises were discretionary. Wl1atever Mr. Randazza ·was paid as compensation and
bonuses is subject to the remedy of disgorgement.

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employment,12 (2) Mr. Randazza is not entitled to any payment for expenses in
connection with the aru1Ual International Trademark Association Conference,
whid1 he did not attend, and (3) Mr. Randazza's bonuses were to be paid on 11 net 11
amount, not 11 gross 11 amounts/ as contended by Mr. Randazza. In the eventr E/L
has been legally excused from any obligation to make any further contractual
payment by reason of Mr. Randazza 1s material breaches of conb.·act with respect
1

to the his obligations under the srune contract, Mr. Randazza1s employment
agreement. That is so UJ1der contract law principles --- separate and apart fmm
equitable principles/ which are also applicable to contract claims, inclucling the
equitable doch·ine of unclean hands, which is applicable to Mr. Randazza 1s
contract claims.
Q. Turning to EjVs counterclaims, Mr. Randazza owed fiduciary
duties to E/L, because he was their in-house general counsel illld their attorney
of record in judicial civil actions, and an E/L executive and employee. As such,
Mr. Randazza owed E/L1 as his clients, employers and principals, the highest
duty of loyalty and honesty in the performance of his professional and executive
obligations. That among other things legal and ethical
duties of acting honestly and solely for the benefit of Iris
clients/ employers/ principals, av aiding acting inconsistently witl1 tl10se duties,
and where actual or potential conflicts of interests existed to malce 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
J\.1r. Randazza 1s ethical duties owed to his principals/ clients was a legal fiduciary
duty mved to them. Mr. Randazza violated those fiduciary duties owed by him
to E/L, as his principals/ clients/ including by the following:

nsee Pars. S(A), (B) and (G), supra, concerning Mr. Randazzars having voluntarily
ended his E/L employment, including via and as evidenced by written and verbal and
non-verbal conduct. Mr. Randazza 1·vas contractually entitled to payment equivalent to
12-weel< severance only if his employment was involuntarily terminated.

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(1) engaging iJ1 negotiations for monetary bribes to be paid to him - inclm}ing
the 11 0ron $75,000n which Mr. Gideon noticed, without Mr. Randazza's
affirmative disclosure ofit- which would result in his being 11 conflicted out" of
future litigation or any disputes with pa1ties then and/ or in the £utme with

IIIII
II///
IIIII

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 aver, Oron settlement
funds- all of which ought to have been for the benefit and under the direction
and control of Jus principals/ clients E/L, before and after the end of his
employment and representations on behalf of E/L --- (3) Mr. Rru1dazza's
ordering and causing tl1e deliberate 11 wiping 11 of his and legal assistant1s
corporate laptops, as an integral part of his planned resignation as E/L's General

13 It is irrelevant that none of Mr. Randazza's negotiations concerning bribes-

including the Oron bribe- resulted in an _actual bribe payment. See Mr. Randazza's
Reply at pp.4:24:-5:1: "Yet despite years of discovery in this matter, Respondents have not
been able to point to a single 1bribe 1 paid to 1vfr. Randazza, or a single consummated deal
betvveen him and the opposing party."* TI1e Arbitrator has accepted, as an admission
by ·Mr. Randazza that 11he repeatedly engaged in these 1bribe'negotiati.ons, 11 but the
Arbiu·atorhasnot accepted Mr. Randazza's testimony and further contention that he did
so ubecause they \•vere par for the cow·se in dealing counsel for infringers and
because engaging in them was l11e best way to soften up the otl1er side and get more
money for respondents." Id., atp; 5:2-5.
In this arbitration, 1v1r. Randazza has established a virtually unbroken pattem of
asserting a legal/fiduciary vcuiant of the sports "No harm, no foul." TI1e
Arbitrator has not accepted those assertions- including, for example, a professional
or fiduciary duty has been violated, whether spoliation has been committed, etc.

14
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 16 of 43

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), 1<\7llose interests were actually
and potentially adverse to E/Vs interests.1':l
R. The Arbih·ator respectfully disagrees with Ivb:. Randazza's expert
vvitnesses, who respectively testified that, under both Nevada and California
rules of ethics and/ or professional responsibility, there were no violations of
Hduciary duty, if and because they concluded that there was no resulting haTm.
The 11fact of damage" or proximate cause is not an essential element
of either 11 du tyu or "breach of duty 11 -but rather a separate element of a claim or
cause of The Arbitrator's disagreement vvith Mr. Randazza's expert witnesses
centers
Whether or not Mr. Randazza 1s breaches of Hdudary duty
proximately resulted in damages sustained by Excelsior, Liberty or both of them
--as a matter of sound public policy- Mi-. Randazza should not be allowed to
retain Emy pecuniary or legal benefit Tesulting 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-ovvned 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 arbih·ation of "No hm·m, no foul 11 ---which the
Arbitrator has not accepted, primarily because of the violations of duties
constituting and/ or including fiducim-y duties. Ethical and other violations of

Mr. Randazzats legal work for non-E/L clients-- independent of the violations of Mr.
Randazza 1s ethical and fiduciary duties-- were significantly beyond the contractually-
permitted scope under his employment agreement. The Arbitrator may award tl1e
equivalent to amounts of funds ordered to be immediately turned over by Mr. Randazza
to E/L. See Interim Arbib·ation Award, Par.

15
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 17 of 43

fiduciary duties do not require "fact of hru1.n 11 to be shown by a preponderance of

the evidence or otherwise.
Moreover, in the circumstances o£ (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 11 bribe 11 to
be conflicted out of future litigation with adverse settling parties and other
conflicts of interest- and (2) Mr. Randazza 1s ethical challenges shown in this
arbitration, there should be a presumption of nfact of hann11 caused to E/L by Ivir.
Randazza 1s conduct amC additionally, a presumption of Mr. Randazza 1s
intention to harm his clients by wiping everything off a£ his and his legal
assistant's company-owned cmnputers.
As E/Us inside general counsel and employee, Mr. Randazza had
a legal and fiduciary duty ---no later than wl1en 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 unde1eted, 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 \\lith those
duties, they continued and continue to.the day of the rendering of this awru:d ---
including beyond Mr. Randazza 1s belated and resisted tuTnover a£ one of the
laptop because another laptop entrusted to Mr. Randazza remains
unreturned. Those continuing fiduciary duties awed by him to E/L exist,
including by reason of his exclusive conb.·oi over the computers and thus
superior l01owledge of what was on each computer1s hard drive before and after
he had everything on the returned laptops completely and multiply deleted--
including prior and in contemplation of his plru.u1ed resignation on August 29,
2012.

16
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 18 of 43

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 ru1d contentions which he might make in any dispute with
E/L ---i.e., deliberate spoHation, 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 shov.rn any specific or tangible :injury by reason of his
conduct in causing compru1y-owned computers to be completely wiped of all
data prior to their Tesisted and belated return. In the circumstances--- and
paraplu·asing former Defense Secretary Donald Rumsfeld ---neither Respondent
should bear any burden or responsibility to come forward with any evidence of
damage1 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 vv:iped before ultimate return--- Mr. Randazza
committed spoliation of evidence, as well as improper conversion of his
employer's files 1 data and equipment and, in so doing, also violated his fiduciary
duties owed to E/L.
S. The closUl'e 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 sigrlificant 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 "preponderance of the
evidence/ (3) lvh·. Randazza's response to EjUs grievance contained at least one

17
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 19 of 43

material misrepresentation acknowledged during an evidentiary session i.n tllis

arbitration (that he stopped representing XVideos in 2009), (4) the Nevada State
Bar closed its file with an express statement that it has 11no 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, ernails, etc.) was not available to
be presented byE/Lin support of its grievance (e.g., Mr. Randazza 1s assisting
Datatech, including via forwarding fruits of a disclosed (mmamed) computer
11
hacker 11).
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 1s violations of fiduciary duty and other duties, by llis
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
tl1at amount, $55,000 was paid to and received by Mr. Randazza 1s law firm,
rather than E/L, in connection with (1) Mr. Randazza 1s ostensibly pro bono
representation in connection with the so-called 11Righthaven cases, 11 of which E/L
was generally aware and consented to (A) with tl1e 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. Randazzar via Ius law finn, until
after the fact, indeed after Mr. Randazza1s resignation from E/L emp1oyment.15
Mr. Randazza also received $5,000 fl'Dm James Grady, in cmmection with E/Vs
Oron litigation. Although Mr. Randazza testified, without corroboration, that

1s Of the $60,000 paid and received, (A) $55,000 was court-awarded attorneys' fees,
whicl1 were paid to Mr. Randazza 1s law firm, and (B) $5,000 was paid by James Grady.

18
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 20 of 43

Mr. Grad is 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 Ivh·. Randazza should have been paid dn·ectly toE/Lor
turned over to E/L by Mr. Randazza --neither of which was done1 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/Libertymatters beyond contractually-permitted
time under his employment agTeement with Excelsior and by failing to vvind
down his non-Excelsior/Liberty legal activities, as also provided inlvfr.
Randazza's employment agreement.1fi
The extent of Mr. Randazza's conh·actual 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 ru1
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 tlus arbitrationP

16 Mr. Randazza materially breached his employment agreement with Excelsior by

maintaining a p1·ivate la'.v practice, with billed hom·s shown to be in excess of that
permitted by that agreement, performingnon-E/Llegal services during the time he
could and should have been performing services as E/L's General CounseL and by
failing or refusing, consistent with ethical duties and 1·equi.rements, to reduce and taper
off to zero his professional seJ'Vices for clients other than his employer/ E/L.
TI1e 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
conllicts of interests, as some were.
11
17 See Burrow v. Arce, 997 S.W.2d 22.9 (Tex. 1999) ("Burrow )(remedy of
forfeiture/ disgorgement upheld, including court discretion to determine v\rhethe.r some
or all compe.I1sation paid to attorney who breacl1ed fiduciary duty of loyalty owed to

19
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 21 of 43

IIIII
Ill!/
IIIII
There is no requirement that causation or 11 fact of damage 11 be shown.1B There is

no valid reason to distinguish behveen an executive who is 11in house 11 general

client to be forfeited or disgorged, where clear and serious violation(s) of fiduciary duty
shown).
1a That is because, among other reasons, one of the primary purposes of a remedy like
forfeiture/ disgorgeme.nt for breacl1es of fiduciary duty is to deter, not reward and to
remove incentives of fiduciary disloyalty-- including by denying the benefits of
disloyalty, regardless of provable or even actual harm to the principal, including after
payment of compensation. As the Texas Supreme Court pertinently stated in Burrow in
cmmection with the re.medy of forfeiture/ disgorgement as a deterrent and disincentive
for an attorney or other agent to breach of fiduciary duty:
11
Pragmati.cally, the possibility of forfeiture of compensation discourages an agent
from taking personal advantage of Jtjs position of trust in every situation,
no matter the circumstances, whether the principal may be injured or not.
The remedy of forfeiture removes any incentive for an agent to sh·ay from his duty of
loyalty based on the possibility that the principal V\rill be unl1armed or may have
difficulty proving the existence of amount of damages. 11
The California cases cited by Claimant are distinguishable. Frve v. Tenderloin
Housing Clinic, Inc., 38 Ca1.4th 23 Sloven.sl<y v. Friedman, 142 Cal.App.
4th 1518 (2006) ("Slovens1..-v 11 ). The appellate court's conclusion in Slovensky was based
on its misreading and/ or misstatement of the Supreme Courtts holding and the basis
and reasoning for its holding which was, in effect, a none-of£ 11 opinion strongly
driven by the facts and public policy considerations articulated and emphasized by the
Supreme Court in the opinion. The Slovensl<y caures mistake is highlighted by its
reliance on what it called tl1e "E!:yg ruie 11 - which was no such thing, or at least not as
stated and relied on by the court in Slovensky.
TI1ere would be little or no reason far the remedy of disgorgement, if there was a so-
called 11Frye mle 11 as misstated by th.e Slovenskv court and uTged by Mr. Randazza.
If fact of damage and extent of damages must be proven by a preponderance of the
evidence, in order to obtain clisgorgement, that remedy would be rendered duplicative
of the remedy of compensatory damages, except in name only. Moreover, the strong
public policy to deter and remove any incentive for dear and serious viola lions of
fiduciary duty- where injury to the client or other principal might be difficult or
impossible to prove, as a matter of compensable damages- would be severely
undermined.
the California Supreme Court appears to have been offended by the
plaintiff/ clienes overreach in the circumstahces. The Court determined not tl1at the
remedy of disgorgement was legally unavailable but, rather, that its application-- in the

20
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 22 of 43

counsel and other corporate executives with respect to the availability of the
remedy of forfeiture/ disgorgement of compensation for breaches of fiduciary
duty)9 While it might be less easy to determine the appropriate amount of
disgorgement -- because, for example, the compensation paid is not a Hxed
percentage, as in an aU-or-nothing legal or brokerage contingency fee
arrangement, contractual hourly arrangements, etc. --that is not a disqualifying
factor or consideratioiL Considerations of proportionality and non-overlap with
an award under other remedies ru·e 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 by E/L and
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/ dient/ employer, E/L. See Par. l(V),
above.
None of the expert witnesses who testified concerrung 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 tl1e

special context of a technical failure to properly register for the practice of law by a
public interest non-profit organization, engaged in what the Court considered to be
important, worthy public interest work, expressly supported by the Court (including by
affirming very substantial statutory attorneys' fees awards, as stated in that opinion) -
was "grossly disproportionate to the wrongdoings 11 of the defendant there and therefore
11
would constitute a totally unwarranted wind£alr' to the plaintiff there. 38 Cal.4th, at
p. 50. Em, therefore, is distinguishable from the facts of this case.
. Because the basis for itS opinion was wrong, Slovensky is distinguishable or, more
aptly, inapplicable to Mr. Randazza's proven clear and serious ethical and fiduciary
breaches in this case.
1 !1 See Zalcibe v. Ahrens & McCarron, Inc.,28 S.W.3d373,385-386 (Mo. Ct App. 2000)

(executive's breaches of fiduciary duty resulted affirmed forfeiture oflus right to

11
all compensation, including bonuses and severance pay to which he may have been
entitled''); Riggs Investment Management Corp. v. Columbia Partners, LLC, 966 F. Supp.
1250, 1266-1267 (DDC 1997) (former chairman and CEO of corporation forfeited all
salary, bonuses and other compensation paid from the time disloyal action began, as
determined by the appellate court, to date of end of employment six months later).

21
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 23 of 43

sense, howevex, that Mr. Joseph Garin carne close to opining that causation
and/ or 11£act of damage 11 caused by an assumed breach of an ethical/ fiduciary
duty js or should be a prerequisite to the imposition of disgorgement with which
1

opinion the Arbib:ator respectfully disagrees (if that is Mr. Garin1s opinion).10 In
so opining, Mr. Garin (as did Mr. Randazza 1s California expert witness, Ms. Ellen
Peele) testified that--- based on provided by Mr. Randazza there
was not a single instance of an ethical violation, with which the Arbib:ator also
respectfully agrees, based on all of the evidence adduced at hearing.
See Burrow v. Arce, 997 S.W.2d 229 (Tex.1999) and Restatement of
Agency 3d, Sec. 8.01 comment d(2).
X. While Mr. Randazza 1s obtaining Mr. Gideon's signature on the
note for Mr. Randazza 1s $25,000 loan to E/L for Hong Kong legal
fees was rife with ethical infumities, 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 .Al:biu·ator will limit the benefit of
that decision to allowing Mr. Randazza to assert an offset, under tllis paragraph,
to any and all amounts awarded on E/Vs 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 Claimantts attorney trust account/.1 plus interest at
the legal rate of ten percent (10%) per annum from August 29, 2012.
Y. E/L are the prevailing parties in tl1is arbitration. As such one or
both of Respondents is or may be entitled to contractual attorneys fees under the
employment agreement.n

2o Mr. Garin conceded, on cross-examination, that Section 37 of the Restatement 3rd of

The Law Governing Lm·vvers does not say that a showing of actual moneta1y loss is
required for disgorgement of attorney compensation.
21 See Interim Arbitration Award, Pars. 4 &51 atp. 28,mfra.
22 See Interim Arbib·ation Award, Pars. 8 atpp. 28-29, infra.

22
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 24 of 43

INTERIM ARBITRATION AWARD

Based upon careful consideration of the evidence, the applicable law/ the
parties 1 w1i.tten submissions, the Detemlinations hereinabove set forth/ and good
cause appearing, the Interim Arbitration Awm·d in this arbitration is as follows:
1. Claimant and Counter-Respondent Marc J. Randazza C'C1aimant11 )
shall take nothing by any of his claims set forth in his Amended Arbih·ation
Demand.
2. Claimant shall pay Respondent(s) the following sums and
amounts1 as and for monetary damages in connection with Respondents'
counterclaims. Said amounts are exclusive and non-duplicative of any amount
separately and additionally awmded to Respondents as part of the remedy of
disgorgement. See below.
Said amount includes the amount of $275JOOD, plus pre-award
interest from August 13, 2012, at the legal rate of ten percent (10%) per arumm, as
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 h1 connectionwith his negotiating for a $75,000 11 bribe 11 (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 whicl1 amount
Claimant was unjustly enriched -- in that Claimant (via his law firm), rather
than either Respondent received (A) $60 000 in connection -vvitl1 Claimant's
1

ostensibly pro bono representation in connection with the Rightl1aven cases,

willie compensated for Claimanes 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 incmred in connection with QillVX forensic

23
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 25 of 43

examination and attempted restoration o£ data on employer-ovvned 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 o£ the
Arbitrator's discretionr will be awarded for Claimant's spoliation and conversion
of Excelsior1s and Liberty's files and other data contained on employer-owned
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 al'bitration awal'd.
3. Claimant shall pay Respondent Excelsior the amount of $197,000.00
-as and for d.isgorgement of ru1 appropriate amount of Clairnantts employment
compensation (including salary and bonuses) paid under his en1ployment
agreement).
The awarded amount under this paragraph is non-duplicative of
and does not overlap with any amount award as monetary damages under any
ather paragraph of !:his Inte1im A ward.
The amount awarded under this paragraph does not include
disgorgement based on Claimant's post-employment violations o£ fiduciary
duty. That is because it appeal's to the Arbitrator that they are instances of
Respondents having rights without a remedy-- as the limits of case law on
disgargement do not extend to post-employment violations of fiduciary duty.
Disgargement shall be based on Oaimant1s violations of fiduciary
duty as acting as an attorney in coru1ection vvith the TNAFlix
litigation and the Mega Upload case, Claimant's concurrentrepresentation of
XVideos and/ or XNXX during his employment by Excelsior and spending
excessive, undisclosed, time on non-Excelsior/Liberty matters far beyond
contractually-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 Arbi b.·atian A ward) to turn over to

24
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 26 of 43

Respondents all Oron-reJated 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 interest at the legal rate of
ten percent (10%) per ammm .from August 29, 2012.
5. An accounting of Claimant1s attorney u·ust accountis hereby
ordered -:including to ensure compliance with Paragraph 4 hereof. The
accounting shall be performed by a qualified third-party accountant ru1d/ or
accounting finn 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
reimbmsement by Claimant. Claimru1t is hereby ordered to cooperate fully with
the ordered accounting.
6. Claimant is hereby ordered to return the as-yet-mu·eturned
company-owned laptop to Respondents 1 counsel forthwith--- and in no event
later than ten (10) days .from the date of the issuance of this Interim ArbitJ:ation
Award.
7. Respondent shaH be awarded as damages or costs reasonably
incurred with tltis litigation, expenses reasonably incurred by QVIX or sinillarly
gualified expert vendor- up to a maximum of $3,500--- in cmmection with the
vendor's perfonnance 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 Counterdaimants Excelsior Media Corp. and
Liberty Media Holdings, LLC shall be afforded the Tight in this arbitration to
establish their rights --if any, and according to proof--- to conb:actual attorney's
.fees ru1d costs.
Counsel for the pru:ties are ordered to inunecliately corrunence and
diligently conduct and conclude meet-and-confer comn1ruucations and to subnut
to the Arbiu·ator vvith:i:n ten (10) days of the issuance of this Interim Arbitration

25
 Case 15-01193-abl Doc 104-1 Entered 12/22/16 11:42:00 Page 27 of 43

Award an ernailed proposed briefing and hearing schedule for any application
for contractual attorneis 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 Arbib:ation Award, this Interim Arbitr·ation
Award, including the Dete1minations hereinabove set forth, is intended to be in
full settlement of aU claims, issues, allegations and contentions, on the merits,
submitted by any parry 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

.AJ.·bitrator

26