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Two Federal Circuits Find Health Insurance Claims Outside Scope of Arbitration Clauses
May 21, 2014
Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don’t usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. But this week, both the Second and Third Circuits issued decisions holding that defendants could not compel arbitration because the plaintiffs’ claims fell outside the arbitration...
May 21, 2014
Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don’t usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. But this week, both the Second and Third Circuits issued decisions holding that defendants could not compel arbitration because the plaintiffs’ claims fell outside the arbitration...
Public Bankruptcy Mediation Update
May 21, 2014
The Detroit bankruptcy judge has ordered three mediators – all federal judges – to work with Detroit and Wayne, Oakland and Macomb Counties to address the possibility of a regional water authority. The bankruptcy judge also ordered Detroit’s bond insurers to mediate with the city. Detroit Free Press (April 17, 2014); The Bond Buyer (March 21, 2014) Mediation has resulted in a tentative settlement between bankrupt San Bernardino and its biggest creditor, Calpers, which should help...
May 21, 2014
The Detroit bankruptcy judge has ordered three mediators – all federal judges – to work with Detroit and Wayne, Oakland and Macomb Counties to address the possibility of a regional water authority. The bankruptcy judge also ordered Detroit’s bond insurers to mediate with the city. Detroit Free Press (April 17, 2014); The Bond Buyer (March 21, 2014) Mediation has resulted in a tentative settlement between bankrupt San Bernardino and its biggest creditor, Calpers, which should help...
Patent Litigation Study Shows Rise in Suits, Awards
May 21, 2014
The number of patent suits filed in district courts continued to rise in 2013 and has more than doubled in the past five years, according to the first-ever patent litigation year in review published by the legal analytics company Lex Machina. Using data from its popular legal analytics platform, Lex Machina published a report Tuesday that offers insight into judges, districts, patents, damages and filings. It focuses on major trends and developments in patent litigation during 2013. Plaintiffs...
May 21, 2014
The number of patent suits filed in district courts continued to rise in 2013 and has more than doubled in the past five years, according to the first-ever patent litigation year in review published by the legal analytics company Lex Machina. Using data from its popular legal analytics platform, Lex Machina published a report Tuesday that offers insight into judges, districts, patents, damages and filings. It focuses on major trends and developments in patent litigation during 2013. Plaintiffs...
US Supreme Court Hears Argument that Might Hurt Cloud Storage
May 20, 2014
During a hearing in a copyright infringement case about TV programs the alleged infringer’s attorney argued that the “cloud...
May 20, 2014
During a hearing in a copyright infringement case about TV programs the alleged infringer’s attorney argued that the “cloud...
Mediation Quotes
May 20, 2014
In the vast majority of cases, clients have a greater likelihood of making a devastating settlement decision in a mediation session than watching their attorney conduct a devastating cross-examination at trial. - Randall Kiser Some of the sharpest men in argument are notoriously unsound in judgment. I should not trust the counsel of a smart debater, any more than that of a good chess-player. - Oliver Wendell Holmes The appropriateness of lawyers' probability judgments has important implications...
May 20, 2014
In the vast majority of cases, clients have a greater likelihood of making a devastating settlement decision in a mediation session than watching their attorney conduct a devastating cross-examination at trial. - Randall Kiser Some of the sharpest men in argument are notoriously unsound in judgment. I should not trust the counsel of a smart debater, any more than that of a good chess-player. - Oliver Wendell Holmes The appropriateness of lawyers' probability judgments has important implications...
‘Flash Sale’ Website Defeats Class Action Claim With Mandatory Arbitration Clause
May 20, 2014
Gilt implemented its membership agreement using a standard mandatory clickthrough procedure with links to the actual terms. Citing Fteja v. Facebook, the court says: The question here is whether Starke is bound by the written terms of a transaction which he did not see or read, although he was aware that there were terms which governed his purchase, that he would be taken as having agreed to them by making the purchase, and that he could read them by one or two clicks of the mouse. Framed this...
May 20, 2014
Gilt implemented its membership agreement using a standard mandatory clickthrough procedure with links to the actual terms. Citing Fteja v. Facebook, the court says: The question here is whether Starke is bound by the written terms of a transaction which he did not see or read, although he was aware that there were terms which governed his purchase, that he would be taken as having agreed to them by making the purchase, and that he could read them by one or two clicks of the mouse. Framed this...
Appellate Court Reverses Decision that Standard Construction Form Requiring Mediation Is Contract of Adhesion
May 20, 2014
A California court of appeals overturned the trial court’s decision that a standardized home purchase contract which required homeowners to give notice and an opportunity to correct any construction defects, and then to mediate prior to filing litigation against the builder, was an unconscionable contract of adhesion and violated California’s 2002 Right to Repair Act. The appellate court found that there was nothing unfairly one-sided about the mediation terms, as required for a contract to be unconscionable. McCaffrey...
May 20, 2014
A California court of appeals overturned the trial court’s decision that a standardized home purchase contract which required homeowners to give notice and an opportunity to correct any construction defects, and then to mediate prior to filing litigation against the builder, was an unconscionable contract of adhesion and violated California’s 2002 Right to Repair Act. The appellate court found that there was nothing unfairly one-sided about the mediation terms, as required for a contract to be unconscionable. McCaffrey...
How Lawyers’ Intuitions Prolong Litigation
May 20, 2014
Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse...
May 20, 2014
Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse...
Rethinking the Arbitration Clause
May 19, 2014
We’ve discussed the ins and outs of arbitration at length previously. I’ve spent the last few years in a number of arbitration proceedings so in no particular order here are my recent thoughts on the process: 1. Speed. From start to finish there is no faster means to an end than arbitration. I always tell folks it is hard to go to trial, everything is stacked against it. In most cases you go once you are the oldest case meaning you are looking at 2 years before a trial. That means lots of starts...
May 19, 2014
We’ve discussed the ins and outs of arbitration at length previously. I’ve spent the last few years in a number of arbitration proceedings so in no particular order here are my recent thoughts on the process: 1. Speed. From start to finish there is no faster means to an end than arbitration. I always tell folks it is hard to go to trial, everything is stacked against it. In most cases you go once you are the oldest case meaning you are looking at 2 years before a trial. That means lots of starts...
@Google Presents: Daniel Kahneman
May 19, 2014
Daniel Kahneman, recipient of the Nobel Prize in Economic Sciences for his seminal work in psychology that challenged the rational model of judgment and decision making, is one of our most important thinkers. His ideas have had a profound and widely regarded impact on many fields—including economics, medicine, and politics—but until now, he has never brought together his many years of research and thinking in one book. In the highly anticipated Thinking, Fast and Slow, Kahneman takes us on a groundbreaking...
May 19, 2014
Daniel Kahneman, recipient of the Nobel Prize in Economic Sciences for his seminal work in psychology that challenged the rational model of judgment and decision making, is one of our most important thinkers. His ideas have had a profound and widely regarded impact on many fields—including economics, medicine, and politics—but until now, he has never brought together his many years of research and thinking in one book. In the highly anticipated Thinking, Fast and Slow, Kahneman takes us on a groundbreaking...
