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SAMUEL ESTREICHER 79 Highland Ave. NYU School of Law Short Hills, NJ 07078 40 Washington Square So. (973) 467-0416 , NY 10012 (212) 998-6226 (973) 7874728 (cell) (212) 995-4341 (fax) 605 Main Rd. [email protected] Monterey, Mass. (413) 528-5890 Jones Day 222 E. 41 St. New York, NY 10017-6702 (212) 326-3488 (212) 755-7306 (fax) [email protected]

Legal Employment

Dwight D. Opperman Professor of Law, New York University School of Law (areas of teaching: labor law, employment discrimination law, employment law, procedure, appellate advocacy, Supreme Court Practice, administrative law, international law (esp. international law in the U.S. Courts; international arbitration; intcrnationallaw and the Israeli -Palestinian conflict), entertainment law, sports law, negotiation theory, public choice theory, and constitutional law) 1978 - present (tenure as of Feb. 1983; academic chair as of Oct. 2003; formerly Charles L. Denison Professor of Law; co-instructor NYU Supreme Court Litigation Clinic (2007-2009)

Of Counsel, Jones Day, 222 E. 41 st Street, New York, NY 10017-6702 (November 2003- present) (labor & employment and issues & appeals practice groups)

Faculty Director, Center for Labor and Employment Law at NYU School of Law (Feb. 1996 - present) (also wnvem:r of the NYU Annual Conference of Labor)

Chief Reporter, Restatement of Employment Law (American Law Institute (Dec. 2000 - present; chief reporter as of 9/06)

Executive Director, NYU-Dwight D. Opperman Institute of Judicial Administration, Tnc. (Oct. 1991 - present; Co-Executive Director since Sept. 2000)

Of Counsel, Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, NY 10178-0060 (May 2002 - November 2003) (labor & employment and appellate practice groups)

Labor and Employment Counsel, O'Melveny & Myers LLP, Citicorp Center, 153 E. 53d St., 54th floor, New York, NY 10022-4611 (Nov. 1998 -May 2002) (labor & employment and appellate practice groups) Counsel, Cahill, Gordon & Reindel, 80 Pine St., New York, NY 10005 (labor and employment law) (Feb., 1984 - Oct. 1998)

Visiting Professor of Law, School of Law (1983-84)

Law Clerk to Mr. Justice Lewis F. Powell, Jr., Supreme Court of the United States, Washington, D.C. 20543 (1977-78)

Associate, Cohn, Glickstein, Lurie, Ostrin, Lubell & Lubell, 1370 Avenue of the Americas, New York, NY 10019 (1976-77)

Law Clerk to Judge Harold Leventhal, U.S. Court of Appeals, Washington, D.C. 20036 (1975- 1976)

Summer Associate, Kaye, Scholar, Fierman, Hays & Handler, 435 Park Avenue, New York, NY 10022 (1974)

Education

Columbia University School of Law 9/72 - 5/75 J.D. Degree awarded May 1975 Activities: Editor-in-Chief, Honors: Harlan Fiske Stone Scholar Charles B. Beck Prize

Cornell University Graduate School 9/70 - 6/72 M.S. Degree awarded June 1974 Thesis: Collective Bargaining in the Transit System, 1937 - 1950 Honors: New York State's Herbert H. Lehman Graduate Fellowship in Social Science

Columbia College 9/66 - 6/70 B.A. Degree awarded June 1970 Honors: Joseph Pulitzer Fund Scholarship

Publications

Books (published)

Labor Law: Cases, Materials, and Problems (Aspen, i h ed., 2011) (with Michael C. Harper); also statutory supplement

Labor and Employment Law Initiatives and Proposals under the Obama Administration: Proceedings of the New York University 62nd Annual Conference on Labor (Kluwer Law International, 2011) (volume editor: Zev J. Eigen) Global Labor and Employment Law for the Practising Lawyer: Proceedings of the New York University 61 st Annual Conference on Labor (Kluwer Law International, 2010) (volume editor: Andrew P. Morriss)

Employee Benefits and Employee Compensation: Proceedings of the New York University 59th Annual Conference on Labor (Kluwer Law International, 2010) (volume editor: David J. Reilly)

Global Issues in Employee Benefits Law (West/Thomson, 2009) (with Paul M. Secunda and Rosalind J. Connor)

Retaliation and Whistleblowers: Proceedings ofthe New York University 60th Annual Conference on Labor (Kluwer Law International, 2009) (volume editor: Paul M. Secunda)

Workplace Privacy: Proceedings of the New York University 58th Annual Conference on Labor (Kluwer Law International, 2009) (volume editor: Jonathan Remy Nash)

Compensation, Work Hours and Benefits: Proceedings of the New York University 57th Annual Conference on Labor (Kluwer Law International, 2009) (volume editor: Jeffrey Hirsch)

Employment Class and Collective Actions: Proceedings of New York University's 56th Annual Conference on Labor (Kluwer Law International, 2009) (volume editor: David Sherwyn)

Employment Law: Concepts and Insights (Foundation Press, 2008) (with Gillian Lester)

Employment Discrimination and Employment Law 3d (West Publishing Co., 2008) (with M. Harper); also companion volumes in Employment Discrimination Law (2008) and Employment Law (2008)

Global Issues in Employment Law (West/Thomson, 2008) (with Miriam Cherry)

Global Issues in Employment Discrimination Law (West/Thomson, 2007) (with Brian K. Landsberg)

Global Issues in Labor Law (West/Thomson, 2007)

Workplace Discrimination, Privacy and Security in an Age of Terrorism: Proceedings of the New York University 55 th Annual Conference on Labor (Kluwer Law International, 2007) (with Matthew J. Bodie)

Employment Law Stories (Foundation Press, 2006) (with Gillian Lester)

Cross Border Human Resources, Labor and Employment Issues: Proceedings of the New York University 54th Annual Conference on Labor (Kluwer Law International, 2005) (with Andrew J. Morriss)

Alternative Dispute Resolution in the Employment Arena: Proceedings of New York University 53d Annual Conference on Labor (Kluwer Law International, 2004) (with David Sherwyn) The Railway Labor Act and the National Labor Relations Act: A Comparative Appraisal for the Airline Industry (with Sheldon M. Kline, HR Policy Assn., 2004) (noting assistance of Robert G. Walkowiak)

The Internal Governance and Organizational Effectiveness of Trade Unions: Essays in Honor of George W. Brooks (Kluwer Law International, 2001) (with Harry C. Katz & Bruce E. Kaufinan)

The Foundations of Labor and Employment Law (Foundation Press, 2000) (with S. Schwab)

Global Competition and the American Employment Landscape in the New Century: Proceedings of New York University 52d Annual Conference on Labor (Kluwer Law International, 2001)

Sexual Harassment in the Workplace: Proceedings of New York University 51st Annual Conference on Labor (Kluwer Law International, 1999)

Employee Representation in the Emerging Workplace: Alternatives/Supplements to Collective Bargaining: Proceedings of New York University 50th Annual Conference on Labor (Kluwer Law International, 1998)

Proceedings of New York University 49th Annual Conference on Labor (Kluwer Law International, 1997)

The Law Governing the Employment Relationship: Cases and Materials (West Pub!., 2d ed. 1992) (with M. Harper); also 1995 case, statutory supplement and teacher's manual

Labor Law and Business Change: Theoretical and Transactional Perspectives (Quorum Books, 1988) (coed. with Daniel G. Collins); also author of chapter on "Successorship Obligations"

Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process (Yale University Press, 1986) (with John E. Sexton)

Books and Monographs (under preparation)

Restatement Third of Employment Law, Ch. 2 (employment contracts): Ch. 3 (compensation and benefits); Ch. 9 (remedies); overall responsibility for entire project

Global Labor and Employment Law: Reports for Law Offices Worldwide (Oxford University Press, forthcoming) (with Michael J. Gray)

Principles of Labor Law: Concepts and Insights (Foundation Press, forthcoming) (with Matthew J. Bodie)

Administrative and Regulatory State: Cases and Materials (LexislNexis, forthcoming) New York University A private university in the public service School of Law Faculty of Law 40 Washington Square South New York, NY 10012-1099 Telephone: (212) 998-6226 Facsimile: (212) 995-434114657 Email: [email protected] SAMUEL ESTREICHER Dwight D. Opperman Professor ofLmv DlrecfOl~ Center for Labor & Employment LaW Co-Direcfor, Dwight D. Opperman Institute ofJudicial Administration

December 5, 2011

Re: Minkina v. Rogers, Powers & Schwartz et al. (Suffolk Super. Ct., Mass.)

I, SAMUEL ESTREICHER, declare under penalty of law, as follows:

1. I am the Dwight D. Opperman Professor of Law at New York University School of Law (NYU Law), where I have been teaching a variety of subjects, including labor law, employment law, employment discrimination law, administrative law, civil procedure and appellate advocacy, since I joined the law faculty in 1978-1979 academic year. In addition to my teaching duties, I am the Director of NYU Law's Center for Labor and Employment Law and Co-Director of its Dwight D. Opperman Institute of Judicial Administration. The latter organizations, under my supervision and in cooperation with the Federal Judicial Center' (FJC), host an Annual Program on Employment Law for Federal Judges, which in March 2011 completed its 14th year; the FJC reports that this is their most successful program. I have written extensively in my areas of concentration, including leading casebooks in labor law and employment discrimination and employment law. I have served as Chair of the Committee on Labor and Employment Law of the Association of the Bar of the City of New York and Secretary of the American Bar Association's Section on Labor and Employment Law. I have conducted scores of training programs for plaintiff and defense practitioners, government agencies, arbitrators and mediators, as well as courts, domestic and foreign. I am presently Chief Reporter for the American Law Institute's Restatement of Employment Law, the first such project of its kind. My curriculum vitae is attached.

2. In addition to my teaching, writing, judicial education, and law reform activities, I havc served as of counsel to a number of leading management-side law firms, beginning in 1984 with Cahill Gordon & Reindel, moving in 1998 to O'Melveny & Myers, followed by a little under three years' with Morgan Lewis & Bockius, and presently with Jones Day, all in New York. Prior to 1984, I was of counsel to Cohn, Glickstein, Lurie, Ostrin & Lubell, a plaintiff- and union-side law firm. For these law firms, I have been involved in the full range of activities of a labor and employment lawyer, from advice to clients to handling arbitration and litigation, individual and class actions. 3. I have been deeply involved with the subject of employment arbitration throughout my career. I have written extensively on the subject, including academic articles beginning in 1990 and a regular column on "Arbitration" published in the New York Law Journal for over a decade. I have testified on the subject before President Clinton's Dunlop Commission on the Future of Worker Management Relations. I have helped draft arbitration rules for the Center for Public Resources and have advised both the American Arbitration Association and JAMS, another leading arbitration services provider, on their employment arbitration rules and policies. I have advised a number of clients on the content, implementation and interpretation of their employment arbitration programs. I have also served as counsel in leading employment arbitration cases in the National Labor Relations Board, the courts and the Supreme Court, especially serving as co­ counsel in Circuit City Stores, Ino. v. Adams, 532 U.S. 105 (2001). I have represented the U.S. Chamber of Commerce and other employer associations as amici curiae in important employment arbitration cases.

4. I make this declaration in my individual capacity to report what the subject of my expert testimony would be in litigation brought by Dr. Minkina in her dispute with Laurie Frankl, Jonathan Margolis and Rodgers, Powers & Schwartz LLP (collectively "RPS") seeking damages for alleged legal malpractice occurring during their representation of Dr. Mankina in Minkia v. Harvard Medical Faculty Physicians et al., C.A. No. 04-5062- E (Mass. Superior Ct., Suffolk Co.) ("Harvard Medical Case"). What follows are my personal views, which should not be ascribed to any client of my present or former law firms or any other organization or individual.

5. Based on my review of the file and in my professional opinion, RPS violated its duty of care to Dr. Minkina during the course of the Harvard Medical Case because they failed to make and press an argument that would have substantially increased the likelihood of a jury-tried civil action of her employment discrimination and other statutory employment claims. Given the importance of preserving a jury trial for a plaintiff with Dr. Minkina's professional profile, competent employment counsel would have made and pressed the argument that the arbitration clause in her employment agreement with defendants in the Harvard Medical Case was a narrow one and did not authorize arbitration of employment discrimination and other statutory employment claims. See Warfield v. Beth Israel Deaconess Medical Center, 454 Mass. 390 (July 27,2009).

6. Well before the issuance of the Massachusetts Supreme Judicial Court's decision in Warfield (July 29,2009) or the trial court decision presaging that holding (Sept. 12, 2008), competent counsel would have understood that the Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347, 677 N.E.2d 242 (1997), on which the trial court in the Harvard Medical Case heavily relied, was plainly distinguishable, as the arbitration clause in that case referred to employment disputes and was not limited to claims arising under the employment agreement, as was true of Minkina' s arbitration agreement with the defendants in the Harvard Medical Case. 7. I have found no evidence that RPS made this critical scope of the arbitration clause argument in RPS's opposition papers filed in response to the Defendants' Motion to Compel Arbitration or Stay or Dismiss Litigation, or RPS' Plaintiffs Memorandum of Law in Support of her Single Justice Petition.

8. By failingto properly make this argument in seeking single justice appellate review, Minkina's former counsel reduced significantly the chances of a reversal of the motion to compel arbitration.

9. RPS's Robert S. Mantell's communication of April 17, 2006 to Dr. Minkina also failed to refer to this critical scope or the arbitration clause argument in evaluating the likelihood of success in reversing the trial court's grant of the defendants' motion to compel arbitration. The correspondence also overstated Dr. Minkina's ability to raise successfully opposition to arbitration in the course of judicial review of an arbitration award.

10. Had Dr. Minkina been able to obtain a jury trial in this case, she would likely have obtained a significantly larger award than she in fact obtained from the arbitrator. Because of the potential availability of punitive damages, and other factors, competent defense counsel, fearing such a prospect, would likely have settled the case at a level in excess of the award she received from the arbitrator.

Date: December 5, 2011