Ms. Berry has won the first round on the threshold issue: i.e. whether she gets a jury trial or will she be forced to arbitration.
Arbitration clauses are generally enforceable, but in this case the article reads:
Company lawyers filed a motion to dismiss saying employees agree when hired to TRY TO settle disputes through mediation or arbitration before suing.
I don't know whether that is just sloppy writing on the part of the AP or whether the clause only requires that the parties "try" to settle the dispute before suing.
That doesn't sound very binding to me. Its an agreement to agree. One would expect a good binding arbitration clause to mandate arbitration for all disputes arising out of or relating to employment and expressly waive the right to a jury trial. Otherwise, why give the plaintiff a choice between arbitration (usually with a binding result, but not necessarily) and mediation (never binding result unless agreed by the parties at mediation)? And why say "before suing" if you don't contemplate a lawsuit if the "trying" fails?
Lastly, Ms. Berry's lawyer could argue that this promotion was a whole new contract that superseded the previous agreement, and therefore not bound by the arbitration provision.
In this case. I think one can safely assume the writing on the part of the reporter is sloppy. I can't imagine any arbitration clause would say "try". If it did, the rules of construction in contract law would tend to favor the plaintiff's interpretation.
Back to my main question. Do you think the issue of her getting the car is pretty much a done deal and that the only remaining real question is that of additional damages? Frankly, I think if Hooters could resolve this case at this point by simply giving her the car, they would do it. If Hooter's offered to give her the car now and pay her attorney's fees to this point, that would go over very well with a jury or an arbitrator. Is there a provision for a party to make an offer of settlement under Florida law or procedures. If so, that might quickly end this case if Hooters made such an offer.
I would think that "arising out of or related to" language would encompass the contest. Can't get much broader than that language, especially since the contest could be considered a "bonus" to the employee and not somethin that was taken away.