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Sixth Circuit Is First To Find Availability Of Class Arbitration Is Gateway Issue To Be Decided By Courts
November 22, 2013
Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a “gateway” issue of arbitrability that defaults to courts. This week, the Sixth Circuit was the first to take the bait and declare the availability of class actions a gateway question that a court decides unless the parties clearly assign the question to the arbitrator. In Reed Elsevier, Inc. v. Crockett, __ F.3d __, 2013 5911219 (6th Cir. Nov. 5, 2013), a lawyer filed...
November 22, 2013
Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a “gateway” issue of arbitrability that defaults to courts. This week, the Sixth Circuit was the first to take the bait and declare the availability of class actions a gateway question that a court decides unless the parties clearly assign the question to the arbitrator. In Reed Elsevier, Inc. v. Crockett, __ F.3d __, 2013 5911219 (6th Cir. Nov. 5, 2013), a lawyer filed...
Sharing a Mediator’s Powers: Effective Advocacy in Settlement
November 22, 2013
Mediation Quotes: “If parties do not settle it is often because one or more of them wants more than simply an agreement. A litigant may be seeking . . . the chance to confront an opponent in the presence of a neutral person, present arguments, and express his feelings about what happened. . . . “[S]trong emotions, left unaddressed, can badly distort one or both parties’ bargaining decisions. Not dealing with feelings is itself a barrier to settlement. . . . “[In mediation,] parties...
November 22, 2013
Mediation Quotes: “If parties do not settle it is often because one or more of them wants more than simply an agreement. A litigant may be seeking . . . the chance to confront an opponent in the presence of a neutral person, present arguments, and express his feelings about what happened. . . . “[S]trong emotions, left unaddressed, can badly distort one or both parties’ bargaining decisions. Not dealing with feelings is itself a barrier to settlement. . . . “[In mediation,] parties...
Legal Outsourcing: Onshore or Offshore?
November 21, 2013
Legal process outsourcing (LPO) is one of the most widely debated topics amongst general counsel. Despite all the concerns regarding information security, efficiency, etc., the outsourcing industry has witnessed an impressive growth of 28 percent this year, and is expected to continue to grow in the coming years. Cost benefit is the most significant reason for companies to embrace LPO. An attorney in the United States charges around $530 per hour, whereas an attorney in India with similar experience...
November 21, 2013
Legal process outsourcing (LPO) is one of the most widely debated topics amongst general counsel. Despite all the concerns regarding information security, efficiency, etc., the outsourcing industry has witnessed an impressive growth of 28 percent this year, and is expected to continue to grow in the coming years. Cost benefit is the most significant reason for companies to embrace LPO. An attorney in the United States charges around $530 per hour, whereas an attorney in India with similar experience...
Welcome To The Unicorn Club: Learning From Billion-Dollar Startups
November 21, 2013
Learnings to date about the “Unicorn Club”: We found 39 companies belong to what we call the “Unicorn Club” (by our definition, U.S.-based software companies started since 2003 and valued at over $1 billion by public or private market investors). That’s about .07 percent of venture-backed consumer and enterprise software startups. On average, four unicorns were born per year in the past decade, with Facebook being the breakout “super-unicorn” (worth >$100...
November 21, 2013
Learnings to date about the “Unicorn Club”: We found 39 companies belong to what we call the “Unicorn Club” (by our definition, U.S.-based software companies started since 2003 and valued at over $1 billion by public or private market investors). That’s about .07 percent of venture-backed consumer and enterprise software startups. On average, four unicorns were born per year in the past decade, with Facebook being the breakout “super-unicorn” (worth >$100...
Dallas Appeals Court Refuses to Compel Arbitration Using Equitable Estoppel
November 21, 2013
The Fifth District Appeals Court in Dallas has refused to compel arbitration using the doctrine of equitable estoppel. ...
November 21, 2013
The Fifth District Appeals Court in Dallas has refused to compel arbitration using the doctrine of equitable estoppel. ...
“Manifest Disregard of the Law” is Alive and Well and Vacating Arbitrations in Fourth Circuit
November 21, 2013
The Federal Arbitration Act sets forth only four bases for vacating arbitration awards. See 9 U.S.C. § 10 (a). After SCOTUS’s 2008 decision in Hall Street, at least half of the circuit courts have concluded that those four bases are exclusive, de-legitimizing the creative bases that judges had developed over the years. However, a recent Fourth Circuit opinion vacated an arbitration award for ”manifest disregard of the law,” a judicially-created basis for vacating arbitration...
November 21, 2013
The Federal Arbitration Act sets forth only four bases for vacating arbitration awards. See 9 U.S.C. § 10 (a). After SCOTUS’s 2008 decision in Hall Street, at least half of the circuit courts have concluded that those four bases are exclusive, de-legitimizing the creative bases that judges had developed over the years. However, a recent Fourth Circuit opinion vacated an arbitration award for ”manifest disregard of the law,” a judicially-created basis for vacating arbitration...
Settlement Agreements Rarely Against Public Policy
November 21, 2013
A party who signed a detailed settlement agreement after a lengthy mediation between competing factions of a homeowners association sought to have the court strike certain provisions relating to the board and bylaws, asserting they violated specific statutes and public policy generally. A California appellate court affirmed the trial court’s conclusion that no specific violation of statutes covering common interest developments was shown. Moreover, the challenged settlement provisions did not violate...
November 21, 2013
A party who signed a detailed settlement agreement after a lengthy mediation between competing factions of a homeowners association sought to have the court strike certain provisions relating to the board and bylaws, asserting they violated specific statutes and public policy generally. A California appellate court affirmed the trial court’s conclusion that no specific violation of statutes covering common interest developments was shown. Moreover, the challenged settlement provisions did not violate...
Google Admits the Human Brain Still Beats an Algorithm
November 20, 2013
This past week, there was an old-school battle of wits that captured the world's attention: a chess championship. How quaint! A realm in which the human mind is still king, it was dubbed the most exciting chess championship in decades, with the 22-year-old chess sensation Magnus Carlsen, the "Mozart of chess," at work on the board while the titans of Wall Street hung on the edge of their seats—they claim it's pure interest in the beauty of chess; we imagine they have uses for Carlsen's brain...
November 20, 2013
This past week, there was an old-school battle of wits that captured the world's attention: a chess championship. How quaint! A realm in which the human mind is still king, it was dubbed the most exciting chess championship in decades, with the 22-year-old chess sensation Magnus Carlsen, the "Mozart of chess," at work on the board while the titans of Wall Street hung on the edge of their seats—they claim it's pure interest in the beauty of chess; we imagine they have uses for Carlsen's brain...
California Supreme Court Issues Decision on Arbitration and Labor Commissioner Hearings
November 20, 2013
In 2011, the California Supreme Court held: (1) an employee's statutory right to a wage hearing before the Labor Commissioner, known as a Berman hearing, "with all the possible protections that follow from it, is itself an unwaivable right that an employee cannot be compelled to relinquish as a condition of employment;" (2) waiver of an employee's right to seek such a hearing is a substantively unconscionable contract term; and (3) the Federal Arbitration Act (FAA) does not preempt the Court's holdings...
November 20, 2013
In 2011, the California Supreme Court held: (1) an employee's statutory right to a wage hearing before the Labor Commissioner, known as a Berman hearing, "with all the possible protections that follow from it, is itself an unwaivable right that an employee cannot be compelled to relinquish as a condition of employment;" (2) waiver of an employee's right to seek such a hearing is a substantively unconscionable contract term; and (3) the Federal Arbitration Act (FAA) does not preempt the Court's holdings...
Scope of Emergency Arbitrator’s Power Appealed to Second Circuit
November 20, 2013
On October 21, 2013, in Yahoo! Inc. v. Microsoft Corp., No. 13 CV 7237, 2013 U.S. Dist. LEXIS 151175, at *1 (S.D.N.Y. October 21, 2013), the US District Court for the Southern District of New York upheld an award of injunctive relief issued by an emergency arbitrator appointed by the American Arbitration Association (AAA). Yahoo argued that the arbitrator had exceeded his authority and acted in manifest disregard of the law pursuant to the Federal Arbitration Act, 9 U.S.C. § 10(a)(4) (2006),...
November 20, 2013
On October 21, 2013, in Yahoo! Inc. v. Microsoft Corp., No. 13 CV 7237, 2013 U.S. Dist. LEXIS 151175, at *1 (S.D.N.Y. October 21, 2013), the US District Court for the Southern District of New York upheld an award of injunctive relief issued by an emergency arbitrator appointed by the American Arbitration Association (AAA). Yahoo argued that the arbitrator had exceeded his authority and acted in manifest disregard of the law pursuant to the Federal Arbitration Act, 9 U.S.C. § 10(a)(4) (2006),...
