Preview
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
9 J
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
No. 2481CV00787
JENNIFER BOGDANOVITCH, for herself
and her minor daughter, L.B.,
4/1/2024
Plaintiff,
v.
WALNUT HILL SCHOOL FOR THE ARTS,
Defendant.
PLAINTIFF JENNIFER BOGDANOVITCH’S OPPOSITION TO
DEFENDANT WALNUT HILL’S EMERGENCY MOTION TO COMPEL
ARBITRATION AND DENY PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION OR, IN THE ALTERNATIVE, TO STAY PROCEEDINGS
Defendant Walnut Hill School for the Arts (“Walnut Hill”) asks the Court to order Plaintiff
Jennifer Bogdanovitch, M.D. (“Dr. Bogdanovitch”) to arbitrate this entire civil action, including
the equitable claims that Dr. Bogdanovitch has brought for herself and all claims that she has
brought for her minor daughter, L.B. On that procedural basis, Walnut Hill asks the Court to deny
Dr. Bogdanovitch’s motion for preliminary injunction. Walnut Hill’s motion should be denied.
Walnut Hill is wrong for many reasons, but most critically, the Supreme Judicial
Court held in Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric
Co., 399 Mass. 640, 648 (1987), that an agreement to arbitrate does not strip a court of its
equitable authority to issue emergency relief, such as a preliminary injunction.
Such relief is plainly appropriate and necessary here, because despite its 11th-hour
opposition which was filed less than 1 hour ago1, Walnut Hill has not meaningfully disputed the
1
Prior to the filing of this civil action, Dr. Bogdanovitch’s counsel told Walnut Hill’s counsel that,
if the school refused to reconsider its termination decision and to permit L.B. to finish 10th grade,
Dr. Bogdanovitch would be forced to sue the school and seek preliminary injunctive relief. Dr.
Bogdanovitch filed her verified complaint and emergency motion on Monday, March 25, 2024.
1 TH
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
key facts that support Dr. Bogdanovitch’s motion for preliminary injunction. Dr. Bogdanovitch’s
verified complaint provides ample evidence that:
L.B. has been the victim of racist bullying, harassment, discrimination, and
retaliation from classmates;
Dr. Bogdanovitch and L.B. reported the abuse to Walnut Hill, which
acknowledged the “unacceptable behaviors” by other girls;
Walnut Hill failed to establish or implement an effective plan to remedy the
problem, including by taking disciplinary action against the perpetrators and
holding them accountable for violations of school policies;
instead, at the start of spring break on March 13, 2024, Walnut Hill abruptly
terminated L.B.’s enrollment and completely cut the family’s ties with the
school.
That unlawful decision to expel L.B., which Walnut Hill made without any prior notice or process
whatsoever, was not based on any alleged misconduct by L.B. but solely on the false assertion by
Eric Barber, the Head of School, that Dr. Bogdanovitch was no longer “in partnership” with
Walnut Hill. Barber’s insulting claim was baseless, refuted by his own recent comments (e.g.,
thanking Dr. Bogdanovitch and praising her patience), and Dr. Bogdanovitch’s volunteer service
to the school, including as an active member of the Walnut Hill Family Association.
Based on the current record before, a preliminary injunction is plainly warranted to protect
L.B. and her family from further irreparable harm. As explained below, the Court has the equitable
authority to provide that requested relief, regardless of its ruling on the arbitration issue (pages 4-
She served Walnut Hill on the same day, and her counsel told Walnut Hill’s counsel that a hearing
had been set for Monday, April 1, 2024. On Wednesday, March 27, 2024, Walnut Hill filed an
emergency motion to compel arbitration, arguing that preliminary injunctive relief should be
denied on that procedural basis alone. Now, at 10:25 am this morning, four hours before the
scheduled hearing, Walnut Hill has filed a 21-page opposition with 4 affidavits and several
exhibits. That belated effort to muddy the evidentiary record fails, and it smacks of litigation
gamesmanship. Walnut Hill is well aware that neither the Court nor Dr. Bogdanovitch will have
adequate time to review these materials before the hearing. Apparently, any delay—which keeps
L.B. out of school indefinitely—is a “win” for Walnut Hill.
2
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
5). The Court clearly should issue that order because Dr. Bogdanovitch has presented sufficient
evidence to satisfy the applicable standard (pages 5-8). Indeed, if the Court does not act now, it is
far from clear that Dr. Bogdanovitch and L.B. could obtain any meaningful interim relief from a
JAMS arbitrator, who would have limited authority and no enforcement power (pages 8-9).
In any event, Walnut Hill’s motion to compel arbitration should be denied, because
the arbitration provision in the enrollment agreement does not require arbitration of all
claims in this action. By its terms, the provision applies only to “legal and actionable” claims, and
it binds only “Parents,” not students. Thus, the provision does not apply to the equitable claims
that Dr. Bogdanovitch has asserted or any claims that she has asserted on behalf of L.B. (pages 9-
12). Moreover, if interpreted as broadly as Walnut Hill proposes, the arbitration provision would
be unenforceable, because it would be so one-sided as to be fundamentally unfair to the
Bogdanovitch family and contrary to public policy in Massachusetts that strongly promotes
preventing, reporting, and remedying bullying in schools (pages 13-16).
ARGUMENT
I. This Court has the equitable authority to issue the requested preliminary injunction
to prevent further irreparable harm to L.B., and it should.
At end of its memorandum, in very last paragraph, Walnut Hill finally addresses the crucial
question: whether this Court can and should issue a preliminary injunction to permit L.B. to finish
10th grade over the next two months, even if this Court orders the Parties to arbitrate their disputes
about Walnut Hill’s failure enforce its disciplinary policies and its improper expulsion of L.B.
from the school. At bottom, Walnut Hill’s argument is that, if there is an arbitration agreement and
the arbitration rules provide for any “emergency relief,” the Court must defer to the arbitrator on
all matters, including any motion for preliminary injunction. That is not the law, and adopting that
rigid rule in this case would work a serious injustice.
3
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
A. This Court can issue the requested preliminary injunction, regardless of its
ruling on the arbitration provision.
To the extent that Walnut Hill argues the Court cannot allow Dr. Bogdanovitch’s motion
for preliminary injunction—that is, that the arbitration provision in the enrollment agreement
somehow strips the Court of its equitable authority—that contention is incorrect, and the SJC has
rejected it: “[A]n order compelling arbitration does not preclude a court from awarding necessary
pre-judgment relief, so long as that relief is ordered in accordance with the appropriate legal
standard.” Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 399 Mass. 640, 648
(1987) (emphasis added); see id. at 649 (“[T]he determination of a motion for preliminary
injunction does not invade the province of the arbitrator.”).
Federal courts interpreting the Federal Arbitration Act, 9 U.S.C. § 1 et seq., on which
Walnut Hill relies, have uniformly reached the same sensible conclusion. See Teradyne, Inc. v.
Mostek Corp., 797 F.2d 43, 51 (1st Cir. 1986) (holding “a district court can grant injunctive relief
in an arbitrable dispute pending arbitration, provided the prerequisites for injunctive relief are
satisfied.”); Optum, Inc. v. Smith, 360 F. Supp. 3d 52, 56 (D. Mass. 2019) (“At least seven Courts
of Appeals, including the First Circuit, have held that a district court has the inherent equitable
power to issue a preliminary injunction to preserve the status quo pending arbitration in order to
protect the ability of the arbitrator to provide meaningful relief if the plaintiff prevails in the
arbitration.”) (collecting cases).
Here, Dr. Bogdanovitch has satisfied “the appropriate legal standard” for a preliminary
injunction. See Packing Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980) (setting forth
standard); see Pl.’s Mem. in Support of Emergency Mot. for Temporary Restraining Order and/or
Preliminary Injunction (paper no. 4) at 11-12 (explaining that Dr. Bogdanovitch is likely to
succeed on her claims, that L.B. is suffering and will continue to suffer irreparable harm, and that
4
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
the balance of equities counsel in favor of preliminary equitable relief). Thus, the Court plainly
has the equitable power to provide injunctive relief to prevent further irreparable harm.
B. The Court should issue the requested equitable relief, where Dr. Bogdanovitch
has satisfied the applicable standard under Massachusetts law.
If Walnut Hills means to say that the Court should not issue a preliminary injunction so
that L.B. can continue her classes for the remainder of the school year, that argument also fails. In
fact, “the congressional desire to enforce arbitration agreements would frequently be frustrated” if
courts declined to issue “preliminary injunctive relief to preserve the status quo pending arbitration
and, ipso facto, the meaningfulness of the arbitration process.” Teradyne, Inc., 797 F.2d at 51; see
Ortho Pharm. Corp. v. Amgen, Inc., 882 F.2d 806, 812 (3d Cir. 1989) (rejecting the argument that
an arbitration agreement “constitute[es] a ‘waiver’ by either party of the right to seek preliminary
injunctive relief necessary to prevent one party from unilaterally eviscerating the significance of
the agreed-upon procedures”).
In this case, irreparable harm to L.B. has already started, and it will continue for every day
that she is forced to remain out of school. Even if the Court were inclined to send this entire case
to arbitration—and for the reasons set forth below, arbitration is not required—it should still issue
the requested preliminary injunction pending the outcome of any arbitration. Otherwise, given that
there are only two months left in the school year, see Compl. ¶ 116, that L.B. wants to finish 10th
grade at Walnut Hill, id. ¶¶ 117, 121, and that she plans to transfer to another high school for 11th
grade, id. ¶ 121, arbitration without preliminary injunctive relief would be a “hollow formality.”
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1053-54 (4th Cir. 1985).
If Dr. Bogdanovitch and L.B. were to ultimately prevail in arbitration, she would have already
suffered irreparable harm, including serious educational, emotional, and social harm, from the
5
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
tremendous and unwarranted disruption of her academic career. No arbitral order will be able to
turn back the clock and repair that harm for the Bogdanovitch family.2
In asking the Court to send Dr. Bogdanovitch’s motion for a preliminary injunction to
JAMS, Walnut Hill cites a single case, Drake v. Partners, LLC v. Wilson, Sonsini, Goodrich &
Rosati LLP, No. 2184CV2131, 2021 Mass. Super. LEXIS 539 (Mass. Super. Ct. Nov. 7, 2021), in
which the court compelled arbitration and punted the issue of preliminary injunctive relief to the
arbitrator. But Drake was a commercial dispute between a financial firm (Drake) and its former
law firm (Wilson Sonsini) that arose in drastically different circumstances, and the decision is an
outlier. Based on the extensive record of disputed facts in the case, the court simply concluded that
“Drake has not demonstrated a preliminary injunction issued by this Court would be appropriate.”
Id. at *39. Here, in contrast, Dr. Bogdanovitch has made that showing.
Further, Drake turned largely on a formal distinction between “prohibitory” and
“mandatory” injunctions that misses the proverbial forest for the trees. While cases often refer to
a court issuing a preliminary injunction in aid of arbitration to preserve the status quo,” that phrase
is “a summary explanation of the need to protect the integrity of the applicable dispute resolution
process.” Ortho Pharm. Corp., 882 F.2d at 814. It is not surprising, therefore, that other courts
have rejected that distinction. For example, Golden Bridge, LLC v. Navem Partners, LLC, No.
2084CV03017-BLS2, 2021 Mass. Super. LEXIS 14 (Mass. Super. Ct. Feb. 2, 2021), recognized
that “where preserving the status quo will perpetuate harm against the moving party,’ a preliminary
2
Even if an arbitrator from JAMS could provide all necessary preliminary injunctive relief to
ensure the integrity of the arbitration (a critical fact that Walnut Hill has not established), the court
would still “retain[] the power to grant an interim preliminary injunction, where otherwise
justified, for the interval needed to resort to the arbitrator.” Next Step Med. Co. v. Johnson &
Johnson Int’l, 619 F.3d 67, 70 (1st Cir. 2010) (emphasis in original).
6
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
injunction “altering the status quo may be appropriate.” Id. at *11 (quoting O Centro Espirita
Beneficiente Unaio Do Vegetal v. Ashcroft, 389 F.3d 973, 1002 (10th Cir. 2004)).
The purpose of a preliminary injunction is always to prevent
irreparable injury so as to preserve the court's ability to render a
meaningful decision on the merits. It often happens that this purpose
is furthered by preservation of the status quo, but not always. If the
currently existing status quo itself is causing one of the parties
irreparable injury, it is necessary to alter the situation so as to
prevent the injury, either by returning to the last uncontested status
quo between the parties, . . . by the issuance of a mandatory
injunction, . . . or by allowing the parties to take proposed action that
the court finds will minimize the irreparable injury. The focus
always must be on prevention of injury by a proper order, not merely
on preservation of the status quo.
Id. at 11-12 (emphasis in original) (quoting Canal Auth. of the State of Fla. v. Callaway, 489 F.2d
567, 576 (5th Cir. 1974) (remanding case to trial court and cautioning “focus always must be on
prevention of injury by proper order, not merely on the preservation of the status quo”).
“If the existing status quo is currently causing one of the parties irreparable injury and
thereby threatens to nullify the arbitration process, then it is necessary to alter the situation to
prevent that injury.” Ortho Pharm. Corp., 882 F.2d at 814. That is the case here, due to Walnut
Hill’s flagrant violation of its own disciplinary policies and improper expulsion of L.B. from 10th
grade. Indeed, in opposing Dr. Bogdanovitch’s motion for preliminary injunction, Walnut Hill
does not deny that L.B. is now suffering, and will continue to suffer, irreparable harm from the
unlawful and unfair disruption to her education. See Compl. ¶¶ 117, 120.
Notably, Rule 24 of JAMS Comprehensive Arbitration Rules & Procedures (effective June
1, 2021), which Walnut Hill ignores, states that, “[a]ny recourse by a Party to a court for interim
or provisional relief,” such as the filing of a motion for a TRO and/or preliminary injunction, “shall
not be deemed incompatible with the agreement to arbitrate.” Ex. A (emphasis added). In other
words, under its own rules, JAMS would expressly permit Dr. Bogdanovitch to seek preliminary
7
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
relief from the Court, even if she had agreed to arbitrate all claims for herself and L.B. The very
Rules that Walnut Hill asks the Court to enforce allow her to make that motion and provide that,
in filing her motion, she did not violate any arbitration agreement that she may have entered.
Indeed, according to JAMS itself, Dr. Bogdanovitch’s motion for preliminary injunctive relief is
“[]compatible” with any agreement to arbitrate her dispute with Walnut Hill. Id.
Thus, the Court not only can, but should, issue the requested preliminary injunction to
prevent further irreparable harm to L.B., regardless of whether this Court allows or denies Walnut
Hill’s motion to compel arbitration.
C. Contrary to Walnut Hill’s inaccurate assurances, an arbitrator from JAMS
likely cannot provide the requested injunctive relief.
Walnut Hill points to Rule 2 of the JAMS Rules, which it claims “provide[] emergency
relief procedures of which the parties can avail themselves if they believe injunctive relief is
necessary.” WH Mem. at 4-5; see id. at 11 (“Plaintiff should likewise be required to pursue such
relief through the mandated arbitration process in accordance with the [JAMS] Rules.”). But
Walnut Hill attaches to its memorandum, as Exhibit B, only a misleading excerpt from the Rules.
Walnut Hill focuses on Rule 2, which discusses “emergency relief,” but the rule does not
define that phrase or say what relief an arbitrator may order. Like much of the ambiguous language
in the Rules, the focus seems to be on economic harm. See id. at (iv) (“The Emergency arbitrator
shall determine whether the Party seeking emergency relief has shown that immediate loss or
damage will result in the absence of emergency relief.”) (emphasis added). Rule 2 says nothing
about other forms of harm, much less “irreparable harm.”
Moreover, the complete Rules cast considerable doubt on Walnut Hill’s blithe assurance
that Dr. Bogdanovitch can obtain the same emergency equitable relief from a JAMS arbitrator.
Rule 24, which Walnut Hill also overlooks, describes the “awards” that a JAMS arbitrator may
8
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
render. Regarding “Interim Measures,” subsection (e) states: “The Arbitrator may grant whatever
interim measures are deemed necessary, including injunctive relief and measures for the protection
or conversation of property and disposition of disposable goods.” Ex. B at 14 (emphasis added).
That language only authorizes an arbitrator to issue a preliminary injunction to protect “property”
and prevent the disposition of “disposable goods.”
Neither Rule 2, Rule 24, nor any other JAMS rule clearly grant an arbitrator the broad
power—like the Court’s equitable authority—to enjoin Walnut Hill from terminating L.B.’s
enrollment agreement or severing the Bogdanovitch family’s ties with the school or to order
Walnut Hill to reinstate L.B. as a student in good stand and to enforce its own policies to prevent
further bullying, harassment, discrimination, and retaliation against her. That is precisely the sort
of equitable relief that is uniquely suited to judicial action. And even if an arbitrator were to issue
such an award, Dr. Bogdanovitch would have to come back to the Court to enforce it, because an
arbitrator has no contempt power or other enforcement authority.
II. By its terms, the arbitration provision does not apply to all claims in this case.
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., on which Walnut Hill relies,
“requires courts to enforce arbitration agreements according to their terms.” Lamps Plus, Inc. v.
Varela, 139 S. Ct. 1407, 1415 (2019) (quoting Epic Sys. Corp. v. Lewis, 584 U.S. 498, 524 (2018)
(quotations omitted)) (emphasis added). Despite its general policy preference for arbitration, the
FAA does not, as Walnut Hill erroneously suggests, impose a legal requirement that all disputes
between all parties be sent to arbitration whenever contracts include any arbitration provisions.
Under the FAA, “it remains a fundamental principle that arbitration is a matter of contract,
not something to be foisted on the parties at all costs.” Landry v. Transworld Sys., Inc., 485 Mass.
334, 337 (2020) (internal quotations omitted); see Stolt-Nielsen S.A. v. AnimalFeeds Int’l, 559 U.S.
662, 681 (2010) (holding arbitration “is a matter of consent, not coercion”). Thus, in interpreting
9
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
an arbitration provision, the Court must “seek a balance between the statutory policy favoring
arbitration as an expeditious and efficient means for resolving disputes and the court’s role as the
guardian of the parties’ rights to submit to arbitration only those disputes that the parties intended.”
Landry, 485 Mass. at 337 (quoting Mass. Highway Dep’t v. Perini Corp., 444 Mass. 366, 374
(2005)) (emphasis added); see Granite Rock Co. v. Int’l Brotherhood of Teamsters, 561 U.S. 287,
297 (2010) (“[A] court may order arbitration of a particular dispute only where the court is satisfied
that the parties agreed to arbitrate that dispute.”) (emphasis in original).
Here, in its misguided effort to force this entire civil action into secret private arbitration,
Walnut Hill misreads the arbitration provision and stretches the terms “claims” and “parties”
beyond the actual language of the enrollment agreement.
A. By its terms, the arbitration provision does not apply to equitable claims by
Dr. Bogdanovitch, for herself or her minor daughter, L.B.
Walnut Hill misleadingly describes the arbitration provision in this case as applying to “any
and all claims” concerning the enrollment agreement for L.B. WH Mem. at 2, 8, 10. That, however,
is not the language of the agreement. Rather, it reaches only “any legal and actionable
controversies and claims.” WH Mem., Ex. A at 4.
The italicized language, which Walnut Hill disregards, is critical because it excludes
equitable claims. The words “legal and actionable” limit the arbitration provision to “actionable”
claims for “legal” remedies, i.e., ripe claims for money damages as compensation for cognizable
injuries. “Legal” claims, by definition, do not include “equitable” claims. Indeed, the basic
principles of equitable relief limit a court’s exercise of that broad, flexible power to situations in
which a party has no “adequate remedy at law.” Foster v. Evans, 384 Mass. 687, 694 (1981)
(“Since the plaintiff has no adequate remedy at law, he is entitled to the equitable relief that he
seeks.”); Frank J. Linhares Co. v. Reliance Co., 4 Mass. App. Ct. 617, 619 (1976) (“It is a
10
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
fundamental principle that, in the absence of a statute specifically conferring equity jurisdiction, a
party may not seek in equity what he could obtain in an action at law.”).
In this case, on behalf of herself and her minor daughter, L.B., Dr. Bogdanovitch has
brought legal and equitable claims. She seeks not only money damages, but also specific
performance of the enrollment agreement and related policies (e.g., policies requiring Walnut Hill
to protect L.B. from bullying, harassment, and discrimination). See Battista v. Moreau, 2 Mass.
App. Ct. 870, 870 (1974) (“The fact that a plaintiff has a remedy at law for damages does not
necessarily bar a suit in equity for specific performance of such a contract.”).
Even if the Court were inclined to compel arbitration of the “legal and actionable” claims
presented, there would be no basis in the arbitration provision to dismiss or stay the distinct
equitable claims presented. By its express terms, the arbitration provision of the enrollment
agreement does not reach those equitable claims.
B. The arbitration clause does not apply to any claims on behalf of L.B., who is
not a “party” to the enrollment agreement.
By “collectively” defining “Plaintiff” for the purpose of its memorandum to include both
Dr. Bogdanovitch and her minor daughter, L.B., WH Mem. at 1, Walnut Hill obscures—perhaps,
intentionally—another important limitation to the arbitration provision in the enrollment
agreement. That provision expressly defines “Parties” to include only the “SCHOOL AND
PARENTS,” not students. Id., Ex. A at 5 (text capitalized in original). The terms of the agreement
are clear: only Walnut Hill and Dr. Bogdanovitch as the “Parties” to the arbitration provision
waived any rights to pursue “legal and actional claims” in court before a jury.
As the enrollment agreement reflects, L.B. did not sign the school contract, accept its
arbitration provision, or “knowingly and intentionally waive any right [she] may otherwise have
to trial by jury or court of such claims or disputes.” Id., Ex. A at 6 (agreement signed only by
11
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
Jennifer and Chris Bogdanovitch). Nor is she identified by the agreement as a “party” to that
specific provision. Thus, claims that belong to L.B., rather than Dr. Bogdanovitch, are not subject
to mandatory arbitration under the agreement.
Courts have recognized this significant limitation when interpreting similar arbitration
provisions in enrollment agreements for secondary schools like Walnut Hill. For example, in Lewis
v. CEDU Educational Services, Inc., 15 P.3d 1147 (Idaho 2000), the Idaho Supreme Court rejected
the same arbitration argument that Walnut Hill now makes. Lewis’s mother filed an enrollment
agreement with CEDU, a private school. After a dispute arose, she filed a civil action in state court,
seeking damages and injunctive relief. CEDU moved to compel arbitration, citing the provision in
its agreement. The court held that because “the arbitration provisions at issue only appl[ied] to the
contracting parties,” and because Lewis was not “a party” as that term was defined, he was “not
bound by the arbitration provisions.” Id. at 143; see id. (explaining student’s status as “third-party
beneficiary” of enrollment agreement was “not controlling given the express language of the
agreement” which made only “parties” subject to mandatory arbitration); see also Bizli v. St.
John’s Milit. Sch., No. 08-cv-2036-CM, 2008 U.S. Dist. LEXIS 73203, at * (D. Kan. Sept. 24,
2008) (ruling legal claims by parents on behalf of students were not subject to arbitration provision
of enrollment agreement).3
In other words, given the express language of the arbitration provision in the enrollment
agreement which applies only to Walnut Hill and “Parents,” as the “Parties” to that provision, but
not students, Dr. Bogdanovitch cannot be forced to arbitrate any claims on behalf of L.B.
3
Although Massachusetts courts have not addressed this precise issue, the First Circuit has
admonished courts to “be extremely cautious about forcing arbitration in ‘situations in which the
identity of the parties who have agreed to arbitrate is unclear.’” InterGen N.V. v. Grina, 344 F.3d
134, 142 (1st Cir. 2003) (quoting McCarthy v. Azure, 22 F.3d 351, 355 (1st Cir. 1994)).
12
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
III. If broadly interpreted as Walnut Hill proposes, the arbitration clause would be
unenforceable as fundamentally unfair and contrary to public policy.
When the “freedom to contract” is “outweighed by other public policy considerations,” an
otherwise valid agreement “will not be enforced.” Miller v. Cotter, 448 Mass. 671, 683 (2007).
That is the case here, because Walnut Hill’s sweeping interpretation of the arbitration provision is
inconsistent with the commitment to “basic fairness” in school disciplinary and public policy
regarding the prevention of bullying in school settings.
A. As broadly interpreted by Walnut Hill, the arbitration clause would be so one-
sided and unfair as to be unconscionable.
The events that have unfolded over the past several weeks are remarkable. Without any
prior notice or process, and without any allegation or finding that L.B. had violated any school
policy, Walnut Hill summarily expelled L.B. at the start of spring break, unilaterally terminated
her enrollment agreement, and prohibited her from returning to her classes and finishing 10th
grade. See Compl. ¶¶ 108-119. The sole basis for that decision was that Walnut Hill—in particular,
its Head of School, Eric Barber—decided that Dr. Bogdanovitch was too “demanding” in her
requests that Walnut Hill protect L.B. from abuse, enforce its policies against bullying, harassment,
and discrimination, and hold the offending students accountable following appropriate disciplinary
processes. See id. Now, having torn up its enrollment agreement with the Bogdanovitch family,
Walnut Hill seeks a court order to compel Dr. Bogdanovitch to comply with the arbitration
provision in that same agreement.
The enrollment agreement, like all school contracts, must be interpreted based on the
“reasonable expectations” of the parents and students. See Schaer v. Boston Univ., 432 Mass. 474,
478 (2000). Moreover, the contract must provide, at a bare minimum, “basic fairness” when it
comes to disciplinary actions, of which the mid-year expulsion of a student is the most severe
13
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
sanction. See Coveney v. Pres. & Trs. of Coll. of Holy Cross, 388 Mass. 16, 19 (1983); Driscoll v.
Bd. of Trs., 70 Mass. App. Ct. 285, 295 (2007).
Despite that settled law, Walnut Hill urges the Court to read the arbitration provision in a
manner that is so patently one-sided and grossly unfair as to be unconscionable. The school cannot
violate its own enrollment agreement—by expelling a student with no prior notice or process–but
then insist that, despite the school’s own flagrant breach, a parent must continue to comply with
that contract. “It is well-established that a material breach by one party excuses the other party
from further performance under the contract.” Ward v. Am. Mut. Liab. Co., 15 Mass. App. Ct. 98,
100 (1983) (citing Quintin Vespa Co. v. Constr. Serv. Co., 343 Mass. 547, 554 (1962)). In short,
Walnut Hill cannot have it both ways.
It is also worth noting that if Walnut Hill sincerely believed that it had a good-faith basis
to expel L.B. and terminate its agreement with Dr. Bogdanovich, because the school could no
longer deal with her “demands” to establish and implement an effective plan to protect L.B. from
further abuse and to discipline the perpetrators, Walnut Hill could have taken that dispute to
arbitration. Walnut Hill could have asked an arbitrator to determine whether Dr. Bogdanovitch had
violated the enrollment agreement in way that warranted expelling her daughter from high school.
Walnut Hill chose not to do that.
B. In cases involving racist bullying and discrimination, mandatory arbitration
would be contrary to public policy.
This case involves serious and troubling incidents of racist bullying, harassment, and
discrimination at Walnut Hill School, by other 10th grade girls against L.B., who is Latina. L.B.
repeatedly and persistently targeted for abuse; among other disturbing incidents, she was excluded
from a chat group named “We hate L****,” Compl. ¶ 49, and told she was “the token minority”
in the theater program, id. ¶ 56. This case is not a dispute about, for example, whether the
14
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
Bogdanovitch family paid all tuition or fees due to the school. Accordingly, there are policy
concerns at play which warrant judicial attention and belong in a public court.
The notion that L.B., the victim of racist bullying by peers at school, and her family should
be forced to address that issue with Walnut Hill only in confidential, private arbitration is contrary
to public policy. Massachusetts law imposes strict anti-bullying requirements on public and private
schools, including to implement plans to prevent bullying, protect victims, and report abuse, see
G.L. c. 71, § 37O, and confidential arbitration promotes none of those policy goals. Further,
pursuant to the state law, schools must have plans to report bullying incidents, with timely
notifications to the parents of “victims” and “aggressors,” school staff, and in some cases, even
law enforcement. See id. § 37O(d)(2) and (k). Strict confidentiality rules, like the ones that Walnut
Hill seeks to impose on the Bogdanovitch family, are inconsistent with objectives to ensure that
bullying is brought to light promptly and addressed appropriately.
By analogy, the recent reforms at the federal level confirm that the student victims of
discrimination and harassment should not be stripped of their rights to sue in court and forced to
arbitrate in private settings, even when they have signed pre-dispute arbitration provisions in
enrollment contracts. In 2022, Congress enacted and President Biden signed the Ending Forced
Arbitration of Sexual Assault and Sexual Harassment Act, which amended the FAA to voids pre-
dispute arbitration clauses in cases involving sexual misconduct claims. See Pub. L. 117-90, 136
Stat. 26 (codified as amended in various section of 9 U.S.C.); see generally David Horton, “The
Limits of the Ending Force Arbitration of Sexual Assault and Harassment Act,” 131 Yale L.J. F.
1 (2022) (quoting Gretchin Carlson regarding mandatory arbitration of her sexual harassment
claims at Fox News: “Forced arbitration is a sexual harasser’s best friend: It keeps proceedings
secret, findings sealed, and victims silent.”). These significant changes reflect the growing
15
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
consensus that arbitration’s informal rules, strict confidentiality, lack of meaningful appellate
rights, and weak (or non-existent) enforcement authority are inappropriate to address serious
misconduct, whether sexual harassment in the workplace or bullying in schools.4
In this case, ordering confidential arbitration would allow, even encourage, Walnut Hill to
punish the victims of bullying and retaliate against families who report such abuse (even though
the school policies “strongly encourage” them to do so). It would endorse severing all ties with the
reporting families rather than taking meaningful disciplinary action against the offending students
(even though its policies promise to hold perpetrators “accountable”)—and then silencing those
same victims and families by insisting they go to arbitration where everything must remain secret.
That is precisely what the Walnut Hill School is now trying to do to the Bogdanovitch family and
what the Court should not permit to happen.
CONCLUSION
For the foregoing reasons, the Court should deny Defendant Walnut Hill School for the
Art’s Emergency Motion to Compel Arbitration, to Dismiss Plaintiffs’ Complaint, and Deny
Plaintiff’s Motion for Preliminary Injunction or, in the Alternative, Stay Proceedings.
4
See, e.g., E. Gary Spitko, “Arbitration Secrecy,” 108 Cornell L. Rev. 1729 (Nov. 2023)
(“arbitrary secrecy may aid parties in hiding from the public their improper or discriminatory
practices” and, as a result, “may negatively impact public welfare”); Rachel M. Schiff, “Not So
Arbitrary: Put an End to the Calculated Use of Force Arbitration in Sexual Harassment Cases,” 53
U.C. Davis. L. Rev. 2693 (2020) (discussing limitations of mandatory arbitration for victims of
discrimination and harassment).
16
Date Filed 4/1/2024 11:25 AM
Superior Court - Middlesex
Docket Number 2481CV00787
Respectfully submitted,
JENNIFER BOGDANOVITCH, for herself
and her minor daughter, L.B.,
By their attorneys,
/s/ Daniel N. Marx
Daniel N. Marx (BBO#674583)
William W. Fick (BBO#650562)
Amy Barsky (BBO#601111)
FICK & MARX LLP
24 Federal Street, 4th Floor
Boston, MA 02110
857-321-8360
dmarx@fickmarx.com
wfick@fickmarx.com
abarsky@fickmarx.com
Dated: April 1, 2024
CERTIFICATE OF SERVICE
I, Daniel N. Marx, as counsel for Plaintiff Jennifer Bogdanovitch, certified that I have
caused the foregoing document to be served by email on counsel for Defendant Walnut Hill School
for the Arts as follows:
Gregory A. Manousos, Esq.
Morgan, Brown & Joy
200 State Street, Suite 11A
Boston, MA 02109
gmanousos@morganbrown.com
/s/ Daniel N. Marx
Daniel N. Marx
Dated: April 1, 2024
17
Preview
Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 9 J COMMONWEALTH OF MASSACHUSETTS Middlesex, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT No. 2481CV00787 JENNIFER BOGDANOVITCH, for herself and her minor daughter, L.B., 4/1/2024 Plaintiff, v. WALNUT HILL SCHOOL FOR THE ARTS, Defendant. PLAINTIFF JENNIFER BOGDANOVITCH’S OPPOSITION TO DEFENDANT WALNUT HILL’S EMERGENCY MOTION TO COMPEL ARBITRATION AND DENY PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION OR, IN THE ALTERNATIVE, TO STAY PROCEEDINGS Defendant Walnut Hill School for the Arts (“Walnut Hill”) asks the Court to order Plaintiff Jennifer Bogdanovitch, M.D. (“Dr. Bogdanovitch”) to arbitrate this entire civil action, including the equitable claims that Dr. Bogdanovitch has brought for herself and all claims that she has brought for her minor daughter, L.B. On that procedural basis, Walnut Hill asks the Court to deny Dr. Bogdanovitch’s motion for preliminary injunction. Walnut Hill’s motion should be denied. Walnut Hill is wrong for many reasons, but most critically, the Supreme Judicial Court held in Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 399 Mass. 640, 648 (1987), that an agreement to arbitrate does not strip a court of its equitable authority to issue emergency relief, such as a preliminary injunction. Such relief is plainly appropriate and necessary here, because despite its 11th-hour opposition which was filed less than 1 hour ago1, Walnut Hill has not meaningfully disputed the 1 Prior to the filing of this civil action, Dr. Bogdanovitch’s counsel told Walnut Hill’s counsel that, if the school refused to reconsider its termination decision and to permit L.B. to finish 10th grade, Dr. Bogdanovitch would be forced to sue the school and seek preliminary injunctive relief. Dr. Bogdanovitch filed her verified complaint and emergency motion on Monday, March 25, 2024. 1 TH Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 key facts that support Dr. Bogdanovitch’s motion for preliminary injunction. Dr. Bogdanovitch’s verified complaint provides ample evidence that: L.B. has been the victim of racist bullying, harassment, discrimination, and retaliation from classmates; Dr. Bogdanovitch and L.B. reported the abuse to Walnut Hill, which acknowledged the “unacceptable behaviors” by other girls; Walnut Hill failed to establish or implement an effective plan to remedy the problem, including by taking disciplinary action against the perpetrators and holding them accountable for violations of school policies; instead, at the start of spring break on March 13, 2024, Walnut Hill abruptly terminated L.B.’s enrollment and completely cut the family’s ties with the school. That unlawful decision to expel L.B., which Walnut Hill made without any prior notice or process whatsoever, was not based on any alleged misconduct by L.B. but solely on the false assertion by Eric Barber, the Head of School, that Dr. Bogdanovitch was no longer “in partnership” with Walnut Hill. Barber’s insulting claim was baseless, refuted by his own recent comments (e.g., thanking Dr. Bogdanovitch and praising her patience), and Dr. Bogdanovitch’s volunteer service to the school, including as an active member of the Walnut Hill Family Association. Based on the current record before, a preliminary injunction is plainly warranted to protect L.B. and her family from further irreparable harm. As explained below, the Court has the equitable authority to provide that requested relief, regardless of its ruling on the arbitration issue (pages 4- She served Walnut Hill on the same day, and her counsel told Walnut Hill’s counsel that a hearing had been set for Monday, April 1, 2024. On Wednesday, March 27, 2024, Walnut Hill filed an emergency motion to compel arbitration, arguing that preliminary injunctive relief should be denied on that procedural basis alone. Now, at 10:25 am this morning, four hours before the scheduled hearing, Walnut Hill has filed a 21-page opposition with 4 affidavits and several exhibits. That belated effort to muddy the evidentiary record fails, and it smacks of litigation gamesmanship. Walnut Hill is well aware that neither the Court nor Dr. Bogdanovitch will have adequate time to review these materials before the hearing. Apparently, any delay—which keeps L.B. out of school indefinitely—is a “win” for Walnut Hill. 2 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 5). The Court clearly should issue that order because Dr. Bogdanovitch has presented sufficient evidence to satisfy the applicable standard (pages 5-8). Indeed, if the Court does not act now, it is far from clear that Dr. Bogdanovitch and L.B. could obtain any meaningful interim relief from a JAMS arbitrator, who would have limited authority and no enforcement power (pages 8-9). In any event, Walnut Hill’s motion to compel arbitration should be denied, because the arbitration provision in the enrollment agreement does not require arbitration of all claims in this action. By its terms, the provision applies only to “legal and actionable” claims, and it binds only “Parents,” not students. Thus, the provision does not apply to the equitable claims that Dr. Bogdanovitch has asserted or any claims that she has asserted on behalf of L.B. (pages 9- 12). Moreover, if interpreted as broadly as Walnut Hill proposes, the arbitration provision would be unenforceable, because it would be so one-sided as to be fundamentally unfair to the Bogdanovitch family and contrary to public policy in Massachusetts that strongly promotes preventing, reporting, and remedying bullying in schools (pages 13-16). ARGUMENT I. This Court has the equitable authority to issue the requested preliminary injunction to prevent further irreparable harm to L.B., and it should. At end of its memorandum, in very last paragraph, Walnut Hill finally addresses the crucial question: whether this Court can and should issue a preliminary injunction to permit L.B. to finish 10th grade over the next two months, even if this Court orders the Parties to arbitrate their disputes about Walnut Hill’s failure enforce its disciplinary policies and its improper expulsion of L.B. from the school. At bottom, Walnut Hill’s argument is that, if there is an arbitration agreement and the arbitration rules provide for any “emergency relief,” the Court must defer to the arbitrator on all matters, including any motion for preliminary injunction. That is not the law, and adopting that rigid rule in this case would work a serious injustice. 3 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 A. This Court can issue the requested preliminary injunction, regardless of its ruling on the arbitration provision. To the extent that Walnut Hill argues the Court cannot allow Dr. Bogdanovitch’s motion for preliminary injunction—that is, that the arbitration provision in the enrollment agreement somehow strips the Court of its equitable authority—that contention is incorrect, and the SJC has rejected it: “[A]n order compelling arbitration does not preclude a court from awarding necessary pre-judgment relief, so long as that relief is ordered in accordance with the appropriate legal standard.” Hull Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 399 Mass. 640, 648 (1987) (emphasis added); see id. at 649 (“[T]he determination of a motion for preliminary injunction does not invade the province of the arbitrator.”). Federal courts interpreting the Federal Arbitration Act, 9 U.S.C. § 1 et seq., on which Walnut Hill relies, have uniformly reached the same sensible conclusion. See Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 51 (1st Cir. 1986) (holding “a district court can grant injunctive relief in an arbitrable dispute pending arbitration, provided the prerequisites for injunctive relief are satisfied.”); Optum, Inc. v. Smith, 360 F. Supp. 3d 52, 56 (D. Mass. 2019) (“At least seven Courts of Appeals, including the First Circuit, have held that a district court has the inherent equitable power to issue a preliminary injunction to preserve the status quo pending arbitration in order to protect the ability of the arbitrator to provide meaningful relief if the plaintiff prevails in the arbitration.”) (collecting cases). Here, Dr. Bogdanovitch has satisfied “the appropriate legal standard” for a preliminary injunction. See Packing Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980) (setting forth standard); see Pl.’s Mem. in Support of Emergency Mot. for Temporary Restraining Order and/or Preliminary Injunction (paper no. 4) at 11-12 (explaining that Dr. Bogdanovitch is likely to succeed on her claims, that L.B. is suffering and will continue to suffer irreparable harm, and that 4 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 the balance of equities counsel in favor of preliminary equitable relief). Thus, the Court plainly has the equitable power to provide injunctive relief to prevent further irreparable harm. B. The Court should issue the requested equitable relief, where Dr. Bogdanovitch has satisfied the applicable standard under Massachusetts law. If Walnut Hills means to say that the Court should not issue a preliminary injunction so that L.B. can continue her classes for the remainder of the school year, that argument also fails. In fact, “the congressional desire to enforce arbitration agreements would frequently be frustrated” if courts declined to issue “preliminary injunctive relief to preserve the status quo pending arbitration and, ipso facto, the meaningfulness of the arbitration process.” Teradyne, Inc., 797 F.2d at 51; see Ortho Pharm. Corp. v. Amgen, Inc., 882 F.2d 806, 812 (3d Cir. 1989) (rejecting the argument that an arbitration agreement “constitute[es] a ‘waiver’ by either party of the right to seek preliminary injunctive relief necessary to prevent one party from unilaterally eviscerating the significance of the agreed-upon procedures”). In this case, irreparable harm to L.B. has already started, and it will continue for every day that she is forced to remain out of school. Even if the Court were inclined to send this entire case to arbitration—and for the reasons set forth below, arbitration is not required—it should still issue the requested preliminary injunction pending the outcome of any arbitration. Otherwise, given that there are only two months left in the school year, see Compl. ¶ 116, that L.B. wants to finish 10th grade at Walnut Hill, id. ¶¶ 117, 121, and that she plans to transfer to another high school for 11th grade, id. ¶ 121, arbitration without preliminary injunctive relief would be a “hollow formality.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1053-54 (4th Cir. 1985). If Dr. Bogdanovitch and L.B. were to ultimately prevail in arbitration, she would have already suffered irreparable harm, including serious educational, emotional, and social harm, from the 5 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 tremendous and unwarranted disruption of her academic career. No arbitral order will be able to turn back the clock and repair that harm for the Bogdanovitch family.2 In asking the Court to send Dr. Bogdanovitch’s motion for a preliminary injunction to JAMS, Walnut Hill cites a single case, Drake v. Partners, LLC v. Wilson, Sonsini, Goodrich & Rosati LLP, No. 2184CV2131, 2021 Mass. Super. LEXIS 539 (Mass. Super. Ct. Nov. 7, 2021), in which the court compelled arbitration and punted the issue of preliminary injunctive relief to the arbitrator. But Drake was a commercial dispute between a financial firm (Drake) and its former law firm (Wilson Sonsini) that arose in drastically different circumstances, and the decision is an outlier. Based on the extensive record of disputed facts in the case, the court simply concluded that “Drake has not demonstrated a preliminary injunction issued by this Court would be appropriate.” Id. at *39. Here, in contrast, Dr. Bogdanovitch has made that showing. Further, Drake turned largely on a formal distinction between “prohibitory” and “mandatory” injunctions that misses the proverbial forest for the trees. While cases often refer to a court issuing a preliminary injunction in aid of arbitration to preserve the status quo,” that phrase is “a summary explanation of the need to protect the integrity of the applicable dispute resolution process.” Ortho Pharm. Corp., 882 F.2d at 814. It is not surprising, therefore, that other courts have rejected that distinction. For example, Golden Bridge, LLC v. Navem Partners, LLC, No. 2084CV03017-BLS2, 2021 Mass. Super. LEXIS 14 (Mass. Super. Ct. Feb. 2, 2021), recognized that “where preserving the status quo will perpetuate harm against the moving party,’ a preliminary 2 Even if an arbitrator from JAMS could provide all necessary preliminary injunctive relief to ensure the integrity of the arbitration (a critical fact that Walnut Hill has not established), the court would still “retain[] the power to grant an interim preliminary injunction, where otherwise justified, for the interval needed to resort to the arbitrator.” Next Step Med. Co. v. Johnson & Johnson Int’l, 619 F.3d 67, 70 (1st Cir. 2010) (emphasis in original). 6 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 injunction “altering the status quo may be appropriate.” Id. at *11 (quoting O Centro Espirita Beneficiente Unaio Do Vegetal v. Ashcroft, 389 F.3d 973, 1002 (10th Cir. 2004)). The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits. It often happens that this purpose is furthered by preservation of the status quo, but not always. If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury, either by returning to the last uncontested status quo between the parties, . . . by the issuance of a mandatory injunction, . . . or by allowing the parties to take proposed action that the court finds will minimize the irreparable injury. The focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo. Id. at 11-12 (emphasis in original) (quoting Canal Auth. of the State of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974) (remanding case to trial court and cautioning “focus always must be on prevention of injury by proper order, not merely on the preservation of the status quo”). “If the existing status quo is currently causing one of the parties irreparable injury and thereby threatens to nullify the arbitration process, then it is necessary to alter the situation to prevent that injury.” Ortho Pharm. Corp., 882 F.2d at 814. That is the case here, due to Walnut Hill’s flagrant violation of its own disciplinary policies and improper expulsion of L.B. from 10th grade. Indeed, in opposing Dr. Bogdanovitch’s motion for preliminary injunction, Walnut Hill does not deny that L.B. is now suffering, and will continue to suffer, irreparable harm from the unlawful and unfair disruption to her education. See Compl. ¶¶ 117, 120. Notably, Rule 24 of JAMS Comprehensive Arbitration Rules & Procedures (effective June 1, 2021), which Walnut Hill ignores, states that, “[a]ny recourse by a Party to a court for interim or provisional relief,” such as the filing of a motion for a TRO and/or preliminary injunction, “shall not be deemed incompatible with the agreement to arbitrate.” Ex. A (emphasis added). In other words, under its own rules, JAMS would expressly permit Dr. Bogdanovitch to seek preliminary 7 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 relief from the Court, even if she had agreed to arbitrate all claims for herself and L.B. The very Rules that Walnut Hill asks the Court to enforce allow her to make that motion and provide that, in filing her motion, she did not violate any arbitration agreement that she may have entered. Indeed, according to JAMS itself, Dr. Bogdanovitch’s motion for preliminary injunctive relief is “[]compatible” with any agreement to arbitrate her dispute with Walnut Hill. Id. Thus, the Court not only can, but should, issue the requested preliminary injunction to prevent further irreparable harm to L.B., regardless of whether this Court allows or denies Walnut Hill’s motion to compel arbitration. C. Contrary to Walnut Hill’s inaccurate assurances, an arbitrator from JAMS likely cannot provide the requested injunctive relief. Walnut Hill points to Rule 2 of the JAMS Rules, which it claims “provide[] emergency relief procedures of which the parties can avail themselves if they believe injunctive relief is necessary.” WH Mem. at 4-5; see id. at 11 (“Plaintiff should likewise be required to pursue such relief through the mandated arbitration process in accordance with the [JAMS] Rules.”). But Walnut Hill attaches to its memorandum, as Exhibit B, only a misleading excerpt from the Rules. Walnut Hill focuses on Rule 2, which discusses “emergency relief,” but the rule does not define that phrase or say what relief an arbitrator may order. Like much of the ambiguous language in the Rules, the focus seems to be on economic harm. See id. at (iv) (“The Emergency arbitrator shall determine whether the Party seeking emergency relief has shown that immediate loss or damage will result in the absence of emergency relief.”) (emphasis added). Rule 2 says nothing about other forms of harm, much less “irreparable harm.” Moreover, the complete Rules cast considerable doubt on Walnut Hill’s blithe assurance that Dr. Bogdanovitch can obtain the same emergency equitable relief from a JAMS arbitrator. Rule 24, which Walnut Hill also overlooks, describes the “awards” that a JAMS arbitrator may 8 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 render. Regarding “Interim Measures,” subsection (e) states: “The Arbitrator may grant whatever interim measures are deemed necessary, including injunctive relief and measures for the protection or conversation of property and disposition of disposable goods.” Ex. B at 14 (emphasis added). That language only authorizes an arbitrator to issue a preliminary injunction to protect “property” and prevent the disposition of “disposable goods.” Neither Rule 2, Rule 24, nor any other JAMS rule clearly grant an arbitrator the broad power—like the Court’s equitable authority—to enjoin Walnut Hill from terminating L.B.’s enrollment agreement or severing the Bogdanovitch family’s ties with the school or to order Walnut Hill to reinstate L.B. as a student in good stand and to enforce its own policies to prevent further bullying, harassment, discrimination, and retaliation against her. That is precisely the sort of equitable relief that is uniquely suited to judicial action. And even if an arbitrator were to issue such an award, Dr. Bogdanovitch would have to come back to the Court to enforce it, because an arbitrator has no contempt power or other enforcement authority. II. By its terms, the arbitration provision does not apply to all claims in this case. The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., on which Walnut Hill relies, “requires courts to enforce arbitration agreements according to their terms.” Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1415 (2019) (quoting Epic Sys. Corp. v. Lewis, 584 U.S. 498, 524 (2018) (quotations omitted)) (emphasis added). Despite its general policy preference for arbitration, the FAA does not, as Walnut Hill erroneously suggests, impose a legal requirement that all disputes between all parties be sent to arbitration whenever contracts include any arbitration provisions. Under the FAA, “it remains a fundamental principle that arbitration is a matter of contract, not something to be foisted on the parties at all costs.” Landry v. Transworld Sys., Inc., 485 Mass. 334, 337 (2020) (internal quotations omitted); see Stolt-Nielsen S.A. v. AnimalFeeds Int’l, 559 U.S. 662, 681 (2010) (holding arbitration “is a matter of consent, not coercion”). Thus, in interpreting 9 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 an arbitration provision, the Court must “seek a balance between the statutory policy favoring arbitration as an expeditious and efficient means for resolving disputes and the court’s role as the guardian of the parties’ rights to submit to arbitration only those disputes that the parties intended.” Landry, 485 Mass. at 337 (quoting Mass. Highway Dep’t v. Perini Corp., 444 Mass. 366, 374 (2005)) (emphasis added); see Granite Rock Co. v. Int’l Brotherhood of Teamsters, 561 U.S. 287, 297 (2010) (“[A] court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute.”) (emphasis in original). Here, in its misguided effort to force this entire civil action into secret private arbitration, Walnut Hill misreads the arbitration provision and stretches the terms “claims” and “parties” beyond the actual language of the enrollment agreement. A. By its terms, the arbitration provision does not apply to equitable claims by Dr. Bogdanovitch, for herself or her minor daughter, L.B. Walnut Hill misleadingly describes the arbitration provision in this case as applying to “any and all claims” concerning the enrollment agreement for L.B. WH Mem. at 2, 8, 10. That, however, is not the language of the agreement. Rather, it reaches only “any legal and actionable controversies and claims.” WH Mem., Ex. A at 4. The italicized language, which Walnut Hill disregards, is critical because it excludes equitable claims. The words “legal and actionable” limit the arbitration provision to “actionable” claims for “legal” remedies, i.e., ripe claims for money damages as compensation for cognizable injuries. “Legal” claims, by definition, do not include “equitable” claims. Indeed, the basic principles of equitable relief limit a court’s exercise of that broad, flexible power to situations in which a party has no “adequate remedy at law.” Foster v. Evans, 384 Mass. 687, 694 (1981) (“Since the plaintiff has no adequate remedy at law, he is entitled to the equitable relief that he seeks.”); Frank J. Linhares Co. v. Reliance Co., 4 Mass. App. Ct. 617, 619 (1976) (“It is a 10 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 fundamental principle that, in the absence of a statute specifically conferring equity jurisdiction, a party may not seek in equity what he could obtain in an action at law.”). In this case, on behalf of herself and her minor daughter, L.B., Dr. Bogdanovitch has brought legal and equitable claims. She seeks not only money damages, but also specific performance of the enrollment agreement and related policies (e.g., policies requiring Walnut Hill to protect L.B. from bullying, harassment, and discrimination). See Battista v. Moreau, 2 Mass. App. Ct. 870, 870 (1974) (“The fact that a plaintiff has a remedy at law for damages does not necessarily bar a suit in equity for specific performance of such a contract.”). Even if the Court were inclined to compel arbitration of the “legal and actionable” claims presented, there would be no basis in the arbitration provision to dismiss or stay the distinct equitable claims presented. By its express terms, the arbitration provision of the enrollment agreement does not reach those equitable claims. B. The arbitration clause does not apply to any claims on behalf of L.B., who is not a “party” to the enrollment agreement. By “collectively” defining “Plaintiff” for the purpose of its memorandum to include both Dr. Bogdanovitch and her minor daughter, L.B., WH Mem. at 1, Walnut Hill obscures—perhaps, intentionally—another important limitation to the arbitration provision in the enrollment agreement. That provision expressly defines “Parties” to include only the “SCHOOL AND PARENTS,” not students. Id., Ex. A at 5 (text capitalized in original). The terms of the agreement are clear: only Walnut Hill and Dr. Bogdanovitch as the “Parties” to the arbitration provision waived any rights to pursue “legal and actional claims” in court before a jury. As the enrollment agreement reflects, L.B. did not sign the school contract, accept its arbitration provision, or “knowingly and intentionally waive any right [she] may otherwise have to trial by jury or court of such claims or disputes.” Id., Ex. A at 6 (agreement signed only by 11 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 Jennifer and Chris Bogdanovitch). Nor is she identified by the agreement as a “party” to that specific provision. Thus, claims that belong to L.B., rather than Dr. Bogdanovitch, are not subject to mandatory arbitration under the agreement. Courts have recognized this significant limitation when interpreting similar arbitration provisions in enrollment agreements for secondary schools like Walnut Hill. For example, in Lewis v. CEDU Educational Services, Inc., 15 P.3d 1147 (Idaho 2000), the Idaho Supreme Court rejected the same arbitration argument that Walnut Hill now makes. Lewis’s mother filed an enrollment agreement with CEDU, a private school. After a dispute arose, she filed a civil action in state court, seeking damages and injunctive relief. CEDU moved to compel arbitration, citing the provision in its agreement. The court held that because “the arbitration provisions at issue only appl[ied] to the contracting parties,” and because Lewis was not “a party” as that term was defined, he was “not bound by the arbitration provisions.” Id. at 143; see id. (explaining student’s status as “third-party beneficiary” of enrollment agreement was “not controlling given the express language of the agreement” which made only “parties” subject to mandatory arbitration); see also Bizli v. St. John’s Milit. Sch., No. 08-cv-2036-CM, 2008 U.S. Dist. LEXIS 73203, at * (D. Kan. Sept. 24, 2008) (ruling legal claims by parents on behalf of students were not subject to arbitration provision of enrollment agreement).3 In other words, given the express language of the arbitration provision in the enrollment agreement which applies only to Walnut Hill and “Parents,” as the “Parties” to that provision, but not students, Dr. Bogdanovitch cannot be forced to arbitrate any claims on behalf of L.B. 3 Although Massachusetts courts have not addressed this precise issue, the First Circuit has admonished courts to “be extremely cautious about forcing arbitration in ‘situations in which the identity of the parties who have agreed to arbitrate is unclear.’” InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003) (quoting McCarthy v. Azure, 22 F.3d 351, 355 (1st Cir. 1994)). 12 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 III. If broadly interpreted as Walnut Hill proposes, the arbitration clause would be unenforceable as fundamentally unfair and contrary to public policy. When the “freedom to contract” is “outweighed by other public policy considerations,” an otherwise valid agreement “will not be enforced.” Miller v. Cotter, 448 Mass. 671, 683 (2007). That is the case here, because Walnut Hill’s sweeping interpretation of the arbitration provision is inconsistent with the commitment to “basic fairness” in school disciplinary and public policy regarding the prevention of bullying in school settings. A. As broadly interpreted by Walnut Hill, the arbitration clause would be so one- sided and unfair as to be unconscionable. The events that have unfolded over the past several weeks are remarkable. Without any prior notice or process, and without any allegation or finding that L.B. had violated any school policy, Walnut Hill summarily expelled L.B. at the start of spring break, unilaterally terminated her enrollment agreement, and prohibited her from returning to her classes and finishing 10th grade. See Compl. ¶¶ 108-119. The sole basis for that decision was that Walnut Hill—in particular, its Head of School, Eric Barber—decided that Dr. Bogdanovitch was too “demanding” in her requests that Walnut Hill protect L.B. from abuse, enforce its policies against bullying, harassment, and discrimination, and hold the offending students accountable following appropriate disciplinary processes. See id. Now, having torn up its enrollment agreement with the Bogdanovitch family, Walnut Hill seeks a court order to compel Dr. Bogdanovitch to comply with the arbitration provision in that same agreement. The enrollment agreement, like all school contracts, must be interpreted based on the “reasonable expectations” of the parents and students. See Schaer v. Boston Univ., 432 Mass. 474, 478 (2000). Moreover, the contract must provide, at a bare minimum, “basic fairness” when it comes to disciplinary actions, of which the mid-year expulsion of a student is the most severe 13 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 sanction. See Coveney v. Pres. & Trs. of Coll. of Holy Cross, 388 Mass. 16, 19 (1983); Driscoll v. Bd. of Trs., 70 Mass. App. Ct. 285, 295 (2007). Despite that settled law, Walnut Hill urges the Court to read the arbitration provision in a manner that is so patently one-sided and grossly unfair as to be unconscionable. The school cannot violate its own enrollment agreement—by expelling a student with no prior notice or process–but then insist that, despite the school’s own flagrant breach, a parent must continue to comply with that contract. “It is well-established that a material breach by one party excuses the other party from further performance under the contract.” Ward v. Am. Mut. Liab. Co., 15 Mass. App. Ct. 98, 100 (1983) (citing Quintin Vespa Co. v. Constr. Serv. Co., 343 Mass. 547, 554 (1962)). In short, Walnut Hill cannot have it both ways. It is also worth noting that if Walnut Hill sincerely believed that it had a good-faith basis to expel L.B. and terminate its agreement with Dr. Bogdanovich, because the school could no longer deal with her “demands” to establish and implement an effective plan to protect L.B. from further abuse and to discipline the perpetrators, Walnut Hill could have taken that dispute to arbitration. Walnut Hill could have asked an arbitrator to determine whether Dr. Bogdanovitch had violated the enrollment agreement in way that warranted expelling her daughter from high school. Walnut Hill chose not to do that. B. In cases involving racist bullying and discrimination, mandatory arbitration would be contrary to public policy. This case involves serious and troubling incidents of racist bullying, harassment, and discrimination at Walnut Hill School, by other 10th grade girls against L.B., who is Latina. L.B. repeatedly and persistently targeted for abuse; among other disturbing incidents, she was excluded from a chat group named “We hate L****,” Compl. ¶ 49, and told she was “the token minority” in the theater program, id. ¶ 56. This case is not a dispute about, for example, whether the 14 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 Bogdanovitch family paid all tuition or fees due to the school. Accordingly, there are policy concerns at play which warrant judicial attention and belong in a public court. The notion that L.B., the victim of racist bullying by peers at school, and her family should be forced to address that issue with Walnut Hill only in confidential, private arbitration is contrary to public policy. Massachusetts law imposes strict anti-bullying requirements on public and private schools, including to implement plans to prevent bullying, protect victims, and report abuse, see G.L. c. 71, § 37O, and confidential arbitration promotes none of those policy goals. Further, pursuant to the state law, schools must have plans to report bullying incidents, with timely notifications to the parents of “victims” and “aggressors,” school staff, and in some cases, even law enforcement. See id. § 37O(d)(2) and (k). Strict confidentiality rules, like the ones that Walnut Hill seeks to impose on the Bogdanovitch family, are inconsistent with objectives to ensure that bullying is brought to light promptly and addressed appropriately. By analogy, the recent reforms at the federal level confirm that the student victims of discrimination and harassment should not be stripped of their rights to sue in court and forced to arbitrate in private settings, even when they have signed pre-dispute arbitration provisions in enrollment contracts. In 2022, Congress enacted and President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which amended the FAA to voids pre- dispute arbitration clauses in cases involving sexual misconduct claims. See Pub. L. 117-90, 136 Stat. 26 (codified as amended in various section of 9 U.S.C.); see generally David Horton, “The Limits of the Ending Force Arbitration of Sexual Assault and Harassment Act,” 131 Yale L.J. F. 1 (2022) (quoting Gretchin Carlson regarding mandatory arbitration of her sexual harassment claims at Fox News: “Forced arbitration is a sexual harasser’s best friend: It keeps proceedings secret, findings sealed, and victims silent.”). These significant changes reflect the growing 15 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 consensus that arbitration’s informal rules, strict confidentiality, lack of meaningful appellate rights, and weak (or non-existent) enforcement authority are inappropriate to address serious misconduct, whether sexual harassment in the workplace or bullying in schools.4 In this case, ordering confidential arbitration would allow, even encourage, Walnut Hill to punish the victims of bullying and retaliate against families who report such abuse (even though the school policies “strongly encourage” them to do so). It would endorse severing all ties with the reporting families rather than taking meaningful disciplinary action against the offending students (even though its policies promise to hold perpetrators “accountable”)—and then silencing those same victims and families by insisting they go to arbitration where everything must remain secret. That is precisely what the Walnut Hill School is now trying to do to the Bogdanovitch family and what the Court should not permit to happen. CONCLUSION For the foregoing reasons, the Court should deny Defendant Walnut Hill School for the Art’s Emergency Motion to Compel Arbitration, to Dismiss Plaintiffs’ Complaint, and Deny Plaintiff’s Motion for Preliminary Injunction or, in the Alternative, Stay Proceedings. 4 See, e.g., E. Gary Spitko, “Arbitration Secrecy,” 108 Cornell L. Rev. 1729 (Nov. 2023) (“arbitrary secrecy may aid parties in hiding from the public their improper or discriminatory practices” and, as a result, “may negatively impact public welfare”); Rachel M. Schiff, “Not So Arbitrary: Put an End to the Calculated Use of Force Arbitration in Sexual Harassment Cases,” 53 U.C. Davis. L. Rev. 2693 (2020) (discussing limitations of mandatory arbitration for victims of discrimination and harassment). 16 Date Filed 4/1/2024 11:25 AM Superior Court - Middlesex Docket Number 2481CV00787 Respectfully submitted, JENNIFER BOGDANOVITCH, for herself and her minor daughter, L.B., By their attorneys, /s/ Daniel N. Marx Daniel N. Marx (BBO#674583) William W. Fick (BBO#650562) Amy Barsky (BBO#601111) FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02110 857-321-8360 dmarx@fickmarx.com wfick@fickmarx.com abarsky@fickmarx.com Dated: April 1, 2024 CERTIFICATE OF SERVICE I, Daniel N. Marx, as counsel for Plaintiff Jennifer Bogdanovitch, certified that I have caused the foregoing document to be served by email on counsel for Defendant Walnut Hill School for the Arts as follows: Gregory A. Manousos, Esq. Morgan, Brown & Joy 200 State Street, Suite 11A Boston, MA 02109 gmanousos@morganbrown.com /s/ Daniel N. Marx Daniel N. Marx Dated: April 1, 2024 17