Blog Archives
Appeals Court Ponders Arbitration of Legal Malpractice Claim
December 17, 2013
A federal appeals court weighed whether a law firm can keep a client’s malpractice claim out of court if the two sides have a contract calling for arbitration of all disputes. On Monday, the U.S. Court of Appeals for the First Circuit heard Douglas Bezio’s appeal of a Maine federal judge’s dismissal of his case against Portland, Maine-based Bernstein, Shur, Sawyer & Nelson and three of its lawyers. Bezio hired Bernstein Shur for a case involving a regulatory dispute with the state...
December 17, 2013
A federal appeals court weighed whether a law firm can keep a client’s malpractice claim out of court if the two sides have a contract calling for arbitration of all disputes. On Monday, the U.S. Court of Appeals for the First Circuit heard Douglas Bezio’s appeal of a Maine federal judge’s dismissal of his case against Portland, Maine-based Bernstein, Shur, Sawyer & Nelson and three of its lawyers. Bezio hired Bernstein Shur for a case involving a regulatory dispute with the state...
Technology, Not Rules Changes, Is Answer to E-Discovery Costs, Arthur Miller Tells Senate Panel
December 17, 2013
In a post here last April, we discussed proposed changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality and to standardize sanctions. A preliminary draft of those rule changes has now been posted for public comment, with the commend period closing on Feb. 15. Before they could take effect, the rules would have to be approved by the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme...
December 17, 2013
In a post here last April, we discussed proposed changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality and to standardize sanctions. A preliminary draft of those rule changes has now been posted for public comment, with the commend period closing on Feb. 15. Before they could take effect, the rules would have to be approved by the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme...
Fourth Circuit Avoids Choosing Between “Chevron” Deference to Regulatory Agency and Pro-Arbitration FAA Policy
December 17, 2013
The US Court of Appeals for the Fourth Circuit in Seney v. Rent-a-Center, Inc. (No. 13-1064, 4th Cir., Dec. 11. 2013) avoided deciding whether Federal agency regulatory limits on pre-dispute arbitration agreements for consumer warranty disputes, promulgated by the US Federal Trade Commission (FTC) under the general authority of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the “MMWA”), are consistent with US Federal Arbitration Act (FAA) pro-arbitration jurisprudence. The Court...
December 17, 2013
The US Court of Appeals for the Fourth Circuit in Seney v. Rent-a-Center, Inc. (No. 13-1064, 4th Cir., Dec. 11. 2013) avoided deciding whether Federal agency regulatory limits on pre-dispute arbitration agreements for consumer warranty disputes, promulgated by the US Federal Trade Commission (FTC) under the general authority of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the “MMWA”), are consistent with US Federal Arbitration Act (FAA) pro-arbitration jurisprudence. The Court...
Is Axiom the Bellwether for Disruption in the Legal Industry?
December 16, 2013
The "Managed Services" Business Model Based on my own discussions with Axiom management and several articles on the topic, see, e.g., Adam Smith, ABA Journal, Strategic Legal Technology Blog, the fastest growing part of Axiom's business is its "Managed Services" practice. Part of the managed services practice is analyzing and redesigning workflows so that in-house lawyers have the cost and quality information needed to make better sourcing decisions. Because Axiom is helping to redesign...
December 16, 2013
The "Managed Services" Business Model Based on my own discussions with Axiom management and several articles on the topic, see, e.g., Adam Smith, ABA Journal, Strategic Legal Technology Blog, the fastest growing part of Axiom's business is its "Managed Services" practice. Part of the managed services practice is analyzing and redesigning workflows so that in-house lawyers have the cost and quality information needed to make better sourcing decisions. Because Axiom is helping to redesign...
Empathy: Paving the Road to Preferential Treatment with Good Intentions
December 16, 2013
How do empathy, accountability and fairness interact to result in preferential treatment (but with the best of intentions)? You know we are looking at this with an eye toward litigation implications and it isn’t even that much of a stretch. The researchers are looking at the workplace supervisor/supervisee relationship to assess how knowing that an employee is having a rough time might result in differing (i.e., preferential) treatment to a “needy employee”. What they find is that when someone...
December 16, 2013
How do empathy, accountability and fairness interact to result in preferential treatment (but with the best of intentions)? You know we are looking at this with an eye toward litigation implications and it isn’t even that much of a stretch. The researchers are looking at the workplace supervisor/supervisee relationship to assess how knowing that an employee is having a rough time might result in differing (i.e., preferential) treatment to a “needy employee”. What they find is that when someone...
How Influenced Are We By Images of Brain Scans? Maybe Not As Much As We Used To Be?
December 16, 2013
While visions of brain scans dance in our head, we may not be as impressed by them as we were a few years ago. Or maybe we never were all that impressed? Just how impressed were we—and how impressed are we now? These are questions to which we have yet to find clear answers. Here are some pieces of that puzzle though. From "'Brain Porn' Not So Seductive After All?" (NPR): There's something deeply compelling about "seeing" the mind at work with the help of relatively new neuroscientific tools,...
December 16, 2013
While visions of brain scans dance in our head, we may not be as impressed by them as we were a few years ago. Or maybe we never were all that impressed? Just how impressed were we—and how impressed are we now? These are questions to which we have yet to find clear answers. Here are some pieces of that puzzle though. From "'Brain Porn' Not So Seductive After All?" (NPR): There's something deeply compelling about "seeing" the mind at work with the help of relatively new neuroscientific tools,...
Fifth Circuit Overrules NLRB, Finds D.R. Horton May Preclude Class Arbitration
December 16, 2013
After three federal circuits had already refused to defer to the NLRB’s decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB’s critical holding: that precluding class arbitrations is a violation of federal labor law. D.R. Horton, Inc. v. Nat’l Labor Relations Bd., __ F.3d __, 2013 WL 6231617 (5th Cir. Dec. 4, 2013). D.R. Horton builds homes in many states. Starting in 2006, its employees had to sign a Mutual Arbitration Agreement. The MAA called...
December 16, 2013
After three federal circuits had already refused to defer to the NLRB’s decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB’s critical holding: that precluding class arbitrations is a violation of federal labor law. D.R. Horton, Inc. v. Nat’l Labor Relations Bd., __ F.3d __, 2013 WL 6231617 (5th Cir. Dec. 4, 2013). D.R. Horton builds homes in many states. Starting in 2006, its employees had to sign a Mutual Arbitration Agreement. The MAA called...
The Starbucks-Kraft Dispute: In Business Negotiations, Prepare for Problems
December 16, 2013
A three-year dispute between Starbucks and Kraft Foods over distribution of Starbucks packaged coffee in grocery stores was resolved on November 12, when an arbitrator determined that Starbucks had breached its agreement with Kraft and ordered the coffeemaker to pay the food giant $2.75 billion, Stephanie Strom reported in The New York Times. The dispute dates back to an agreement negotiated in 1998 when Kraft began selling Starbucks packaged coffee through grocery stores. In 2010, with sales...
December 16, 2013
A three-year dispute between Starbucks and Kraft Foods over distribution of Starbucks packaged coffee in grocery stores was resolved on November 12, when an arbitrator determined that Starbucks had breached its agreement with Kraft and ordered the coffeemaker to pay the food giant $2.75 billion, Stephanie Strom reported in The New York Times. The dispute dates back to an agreement negotiated in 1998 when Kraft began selling Starbucks packaged coffee through grocery stores. In 2010, with sales...
Judge Approves $153 Million Settlement in Fannie Mae Securities Class Action
December 15, 2013
A Washington federal trial judge today approved a $153 million settlement between Fannie Mae and shareholders who sued the mortgage giant for securities fraud. U.S. District Judge Richard Leon found the settlement and plan for distributing it among the more than one million class members was "fair, reasonable and adequate." The case is the largest securities class action settlement in the D.C. federal courts since modern securities litigation laws went into effect in 1996. The order ends...
December 15, 2013
A Washington federal trial judge today approved a $153 million settlement between Fannie Mae and shareholders who sued the mortgage giant for securities fraud. U.S. District Judge Richard Leon found the settlement and plan for distributing it among the more than one million class members was "fair, reasonable and adequate." The case is the largest securities class action settlement in the D.C. federal courts since modern securities litigation laws went into effect in 1996. The order ends...
Number of Takers of the Law School Admission Test Continues to Bottom Out
December 15, 2013
The number of takers of the Law School Admission Test continues to bottom out, with an 11 percent drop as of the October administration of the exam. Takers fell from 37,780 a year ago to 33,673 last month, according to the Law School Admission Council, which develops the test. The latest number is a 45 percent decline from October 2009, when law school fervor started to ebb. As of August, law school applications to American Bar Association-accredited schools nationwide were down nearly 18 percent...
December 15, 2013
The number of takers of the Law School Admission Test continues to bottom out, with an 11 percent drop as of the October administration of the exam. Takers fell from 37,780 a year ago to 33,673 last month, according to the Law School Admission Council, which develops the test. The latest number is a 45 percent decline from October 2009, when law school fervor started to ebb. As of August, law school applications to American Bar Association-accredited schools nationwide were down nearly 18 percent...
