Blog Archives
Who Breached First? Yes, This Is a Messy Construction Case
June 9, 2016
The parties in DFW Airport Board v. Inet Aiport Systems sued each other about problems in the installation of rooftop air conditioning units. Key issues were “who breached first” and whether the parties had a meeting of the minds about a solution; the evidence consisted of a fast-moving, complicated exchange of emails and letters. The Fifth Circuit reversed a summary judgment, noting: “In these circumstances the Contract required both parties to participate in resolving defects. Any contractual...
June 9, 2016
The parties in DFW Airport Board v. Inet Aiport Systems sued each other about problems in the installation of rooftop air conditioning units. Key issues were “who breached first” and whether the parties had a meeting of the minds about a solution; the evidence consisted of a fast-moving, complicated exchange of emails and letters. The Fifth Circuit reversed a summary judgment, noting: “In these circumstances the Contract required both parties to participate in resolving defects. Any contractual...
SCOTOH: Is an Oral Settlement Agreement Enforceable?
June 9, 2016
You’ve gone through negotiations or a mediation. Though there are some differences between the parties the major issues have been resolved though some minor ones remain and a finalized, signed, written agreement hasn’t been completed yet. In this situation could the other party successfully go to court and enforce the oral agreement on the major issues? Recently the Ohio Supreme Court enforced a settlement agreement that was never signed. It only got as far as emails spelling out terms, subject...
June 9, 2016
You’ve gone through negotiations or a mediation. Though there are some differences between the parties the major issues have been resolved though some minor ones remain and a finalized, signed, written agreement hasn’t been completed yet. In this situation could the other party successfully go to court and enforce the oral agreement on the major issues? Recently the Ohio Supreme Court enforced a settlement agreement that was never signed. It only got as far as emails spelling out terms, subject...
Prompt Notice, Please
June 8, 2016
In July 2009, hail damaged the then-dormant Dallas Plaza Hotel (right), owned by Hamilton Properties. Hamilton inspected the property in November 2010, emailed an insurance agent in February 2011, and filed a claim in October 2011. The Fifth Circuit agreed that Hamilton had failed to give reasonably prompt notice, noting that it had no explanation for the long delay, and that while the insurer had been able to investigate the claim: “It is undisputed that because of Hamilton’s delay, AIC lost...
June 8, 2016
In July 2009, hail damaged the then-dormant Dallas Plaza Hotel (right), owned by Hamilton Properties. Hamilton inspected the property in November 2010, emailed an insurance agent in February 2011, and filed a claim in October 2011. The Fifth Circuit agreed that Hamilton had failed to give reasonably prompt notice, noting that it had no explanation for the long delay, and that while the insurer had been able to investigate the claim: “It is undisputed that because of Hamilton’s delay, AIC lost...
Risk Taking: It is a Matter of Biology
June 8, 2016
Are you a risk taker? Or, are you a risk averter? According to a recent article in the New York Times (Rats That Tend to Gamble Help Reveal Science of Risk by Pam Belluck, March 24, 2016 at page A21), the answer lies in a specific type of neuron or nerve cell in the brain. That is, you are hard wired to love risk or to hate it. But, modern science can also manipulate that neuron to turn the risk taker into a risk avoider. In a study conducted on rats by Dr. Karl Deisseroth, a Stanford neuroscientist...
June 8, 2016
Are you a risk taker? Or, are you a risk averter? According to a recent article in the New York Times (Rats That Tend to Gamble Help Reveal Science of Risk by Pam Belluck, March 24, 2016 at page A21), the answer lies in a specific type of neuron or nerve cell in the brain. That is, you are hard wired to love risk or to hate it. But, modern science can also manipulate that neuron to turn the risk taker into a risk avoider. In a study conducted on rats by Dr. Karl Deisseroth, a Stanford neuroscientist...
How to Handle the Negotiator Bully
June 8, 2016
If you want to get what you need when the other negotiator is a bully don’t give in but stand up against the bully. That means being smart about preparation and the negotiation process, not copying his or her language or theatrics. Do your homework and out think the bully Bullies don’t care about what the other party thinks. They just want things their way. A bully may think this makes them strong, but it’s actually a weakness and a vulnerability because he or she isn’t doing the necessary...
June 8, 2016
If you want to get what you need when the other negotiator is a bully don’t give in but stand up against the bully. That means being smart about preparation and the negotiation process, not copying his or her language or theatrics. Do your homework and out think the bully Bullies don’t care about what the other party thinks. They just want things their way. A bully may think this makes them strong, but it’s actually a weakness and a vulnerability because he or she isn’t doing the necessary...
New ABA Mediator Ethics Opinion
June 7, 2016
The Committee recently published an opinion that addresses the conduct of a mediator who posted the following on his Facebook page: Whew! Just settled my first Superior Court civil mediation. A case involving a non-English speaking elderly client, who really really didn’t want to have to go through trial. Possible jury verdict could have been zilch to around $80k. I got her $50k. The Committee’s formal opinion noted that the public Facebook post “would not be proper unless the mediator...
June 7, 2016
The Committee recently published an opinion that addresses the conduct of a mediator who posted the following on his Facebook page: Whew! Just settled my first Superior Court civil mediation. A case involving a non-English speaking elderly client, who really really didn’t want to have to go through trial. Possible jury verdict could have been zilch to around $80k. I got her $50k. The Committee’s formal opinion noted that the public Facebook post “would not be proper unless the mediator...
What is an Arbitration Worth?
June 7, 2016
Appellants, investors who lost money in their dealings with Allen Stanford, began a FINRA arbitration against Pershing LLC, a clearing broker. The panel rejected appellants’ $80 million claim, awarding only $10,000 in arbitration-related expenses. Pershing sought confirmation in federal court and encountered a split in authority about the amount-in-controversy requirement — the “demand” approach, which would allow jurisdiction, and the “award” approach, which would not. The Fifth Circuit...
June 7, 2016
Appellants, investors who lost money in their dealings with Allen Stanford, began a FINRA arbitration against Pershing LLC, a clearing broker. The panel rejected appellants’ $80 million claim, awarding only $10,000 in arbitration-related expenses. Pershing sought confirmation in federal court and encountered a split in authority about the amount-in-controversy requirement — the “demand” approach, which would allow jurisdiction, and the “award” approach, which would not. The Fifth Circuit...
Fishermen Avoid Being Caught In Arbitration’s Net
June 7, 2016
What are the defining characteristics of an arbitration agreement? The dissent in a new 9th Circuit case took on that vexing issue, while the majority sidestepped it altogether while refusing to compel arbitration. In Boardman v. Pacific Seafood Group, __ F.3d __, 2016 WL 1743350 (9th Cir. May 3, 2016), a group of fishermen brought antitrust claims against seafood processors in 2010. They settled in 2012, and Paragraph 3(a) of the settlement agreement provided: In the event that [] Pacific...
June 7, 2016
What are the defining characteristics of an arbitration agreement? The dissent in a new 9th Circuit case took on that vexing issue, while the majority sidestepped it altogether while refusing to compel arbitration. In Boardman v. Pacific Seafood Group, __ F.3d __, 2016 WL 1743350 (9th Cir. May 3, 2016), a group of fishermen brought antitrust claims against seafood processors in 2010. They settled in 2012, and Paragraph 3(a) of the settlement agreement provided: In the event that [] Pacific...
University of Phoenix Nixes Mandatory Arbitration Clause for Students
June 6, 2016
Apollo Education Group, the parent company of the University of Phoenix and Western International University, announced Thursday that it would eliminate the use of mandatory arbitration clauses in students’ enrollment agreements. “We have worked hard to further improve the student experience at all of our institutions and it’s clear that eliminating mandatory arbitration is the right choice for all of our students,” said Greg Cappelli, chief executive officer of Apollo, in a written statement....
June 6, 2016
Apollo Education Group, the parent company of the University of Phoenix and Western International University, announced Thursday that it would eliminate the use of mandatory arbitration clauses in students’ enrollment agreements. “We have worked hard to further improve the student experience at all of our institutions and it’s clear that eliminating mandatory arbitration is the right choice for all of our students,” said Greg Cappelli, chief executive officer of Apollo, in a written statement....
A Call for Feedback on the Use of Joint Session v. Caucus
June 6, 2016
How do mediators actually work? Tom’s recent article titled “Insights on Mediator Practices and Perceptions,” outlines three areas of apparent regional divergence in mediation practice, arising out of the 2014 survey conducted by the IAM and the Straus Institute for Dispute Resolution, Pepperdine School of Law. The divergent areas include: (1) the relative use of joint session and caucus in mediation; (2) the way in which mediators handle information divulged by the parties in caucus; and (3) the extent...
June 6, 2016
How do mediators actually work? Tom’s recent article titled “Insights on Mediator Practices and Perceptions,” outlines three areas of apparent regional divergence in mediation practice, arising out of the 2014 survey conducted by the IAM and the Straus Institute for Dispute Resolution, Pepperdine School of Law. The divergent areas include: (1) the relative use of joint session and caucus in mediation; (2) the way in which mediators handle information divulged by the parties in caucus; and (3) the extent...
