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N. D. Texas Holds Prior Arbitration Precludes Fraud Claim in Merger
November 20, 2013
The Northern District of Texas has reportedly dismissed a lawsuit after determining that an arbitration panel’s decision precluded the plaintiffs’ fraud claim. In Murchison Capital Partners LP et al. v. Nuance Communications Inc., No. 3:12-CV-04746, Nuance Communications Inc. (“Nuance”) acquired all of the shares in Dallas, Texas-based Vocada for a lump sum payment and a portion of the three-year earnings of one of the company’s products above a certain revenue level. After...
November 20, 2013
The Northern District of Texas has reportedly dismissed a lawsuit after determining that an arbitration panel’s decision precluded the plaintiffs’ fraud claim. In Murchison Capital Partners LP et al. v. Nuance Communications Inc., No. 3:12-CV-04746, Nuance Communications Inc. (“Nuance”) acquired all of the shares in Dallas, Texas-based Vocada for a lump sum payment and a portion of the three-year earnings of one of the company’s products above a certain revenue level. After...
Eighth Circuit Rejects NFL Retirees’ Objections to Mediated Settlement Due to Exclusion from Mediation
November 20, 2013
Litigation by retired players against the National Football League was consolidated with the active players’ case and sent to mediation, but the retirees were not involved in the mediation to the extent they would have liked, despite the efforts of the mediator to have them included. When the active players reached a settlement with the NFL, the retired players were dissatisfied with only receiving $900 million in additional benefits (over ten years), asserting they could have done better negotiating...
November 20, 2013
Litigation by retired players against the National Football League was consolidated with the active players’ case and sent to mediation, but the retirees were not involved in the mediation to the extent they would have liked, despite the efforts of the mediator to have them included. When the active players reached a settlement with the NFL, the retired players were dissatisfied with only receiving $900 million in additional benefits (over ten years), asserting they could have done better negotiating...
Dispute Resolution Counsel: So What is this Different Kind of Legal Advocacy?
November 19, 2013
One reason we changed the name of our firm recently to Dispute Resolution Counsel was to highlight the role that lawyers play in representing their clients in an alternative dispute resolution (ADR) processes. The role, approach and technique of a lawyer in these situations are different from that of a litigator. The focus and the goal of the process are different and the process itself is different from litigation and trial. In a world of specialization and niches, this different process and different...
November 19, 2013
One reason we changed the name of our firm recently to Dispute Resolution Counsel was to highlight the role that lawyers play in representing their clients in an alternative dispute resolution (ADR) processes. The role, approach and technique of a lawyer in these situations are different from that of a litigator. The focus and the goal of the process are different and the process itself is different from litigation and trial. In a world of specialization and niches, this different process and different...
Lessons on Negotiating With Adversaries
November 19, 2013
In their Mediation column, Abby Tolchinsky and Ellie Wertheim, partners at Family Mediation, discuss a new book by former governor of New Mexico and U.S. ambassador to the United Nations Bill Richardson that provides many lessons to keep in mind when trying to reach an agreement with an adversary, particularly one who seems mercurial and irrational at best.
November 19, 2013
In their Mediation column, Abby Tolchinsky and Ellie Wertheim, partners at Family Mediation, discuss a new book by former governor of New Mexico and U.S. ambassador to the United Nations Bill Richardson that provides many lessons to keep in mind when trying to reach an agreement with an adversary, particularly one who seems mercurial and irrational at best.
Failure to Provide AAA Arbitration Rules to Employee Does Not Render Arbitration Policy Unconscionable
November 19, 2013
In Peng v. First Republic Bank (8/29/13, pub. 9/26/13), --- Cal.App.4th ---, the trial court denied an employer defendant's petition to compel arbitration in an action alleging discrimination and related claims. The Court of Appeal reversed, holding: Failure to attach the AAA arbitration rules to the arbitration policy, by itself, did not render the policy procedurally unconscionable. Slip op. at 6-9.
November 19, 2013
In Peng v. First Republic Bank (8/29/13, pub. 9/26/13), --- Cal.App.4th ---, the trial court denied an employer defendant's petition to compel arbitration in an action alleging discrimination and related claims. The Court of Appeal reversed, holding: Failure to attach the AAA arbitration rules to the arbitration policy, by itself, did not render the policy procedurally unconscionable. Slip op. at 6-9.
Scary Results if Employers Overreach in Arbitration Clauses
November 19, 2013
No haunted house can scare general counsel as much as an opinion invalidating their company’s arbitration clause and thereby...
November 19, 2013
No haunted house can scare general counsel as much as an opinion invalidating their company’s arbitration clause and thereby...
Fifth Circuit Holds Arbitration Provision Included in Employee Handbook is Illusory and Unenforceable Under Texas Law
November 19, 2013
In an unpublished opinion, the Fifth Circuit has affirmed a Texas federal court’s decision to deny a company’s motion to compel arbitration in an employment discrimination and retaliation lawsuit. In Scudiero v. Radio One of Texas II, L.L.C., No. 13-20114, (5th Cir., October 24, 2013), Vince Scudiero and Christel Thornton filed a lawsuit in federal court against their employer, Radio One of Texas II, L.L.C. (“Radio One”), alleging race discrimination and retaliation against Scudiero...
November 19, 2013
In an unpublished opinion, the Fifth Circuit has affirmed a Texas federal court’s decision to deny a company’s motion to compel arbitration in an employment discrimination and retaliation lawsuit. In Scudiero v. Radio One of Texas II, L.L.C., No. 13-20114, (5th Cir., October 24, 2013), Vince Scudiero and Christel Thornton filed a lawsuit in federal court against their employer, Radio One of Texas II, L.L.C. (“Radio One”), alleging race discrimination and retaliation against Scudiero...
Regulation of Dispute Resolution in the United States of America
November 19, 2013
Carrie Menkel-Meadow, Professor of Law at the Georgetown University Law Center and Chancellor’s Professor of Law At the University of California Irvine School of Law, has published “Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-Formal’” inRegulating Dispute Resolution: ADR and Access to Justice at the Crossroads, Felix Steffek, Hannes Unberath, Hazel Genn, Reinhard Greger & Carrie Menkel-Meadow, eds., Hart, 2013. ...
November 19, 2013
Carrie Menkel-Meadow, Professor of Law at the Georgetown University Law Center and Chancellor’s Professor of Law At the University of California Irvine School of Law, has published “Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-Formal’” inRegulating Dispute Resolution: ADR and Access to Justice at the Crossroads, Felix Steffek, Hannes Unberath, Hazel Genn, Reinhard Greger & Carrie Menkel-Meadow, eds., Hart, 2013. ...
Third Circuit Says Delaware Can’t Have Secret Arbitrations By Judges
November 18, 2013
The Third Circuit ruled last week that Delaware’s Chancery Court could not offer its judges’ services as neutral arbitrators in its courtrooms, unless those arbitrations were open to the public. In 2009, the Delaware courts decided to provide arbitration. The state amended its laws to create an arbitration process that was only open to disputes worth more than a million dollars with at least one party being a business incorporated in Delaware (and no party being a consumer). The parties...
November 18, 2013
The Third Circuit ruled last week that Delaware’s Chancery Court could not offer its judges’ services as neutral arbitrators in its courtrooms, unless those arbitrations were open to the public. In 2009, the Delaware courts decided to provide arbitration. The state amended its laws to create an arbitration process that was only open to disputes worth more than a million dollars with at least one party being a business incorporated in Delaware (and no party being a consumer). The parties...
In Practice: Harsh Class Arbitration Waivers Still Unconscionable
November 18, 2013
Since the U.S. Supreme Court handed down its decision in AT&T Mobility, LLC v. Concepcion, holding that the Federal Arbitration Act preempts California's rule that invalidates arbitration agreements in which the parties waive the right to class-wide proceedings, courts in California have wrestled with applying Concepcion in the employment context, with confusing and often conflicting results for employers. It's not too surprising, then, that the California Supreme Court granted review last...
November 18, 2013
Since the U.S. Supreme Court handed down its decision in AT&T Mobility, LLC v. Concepcion, holding that the Federal Arbitration Act preempts California's rule that invalidates arbitration agreements in which the parties waive the right to class-wide proceedings, courts in California have wrestled with applying Concepcion in the employment context, with confusing and often conflicting results for employers. It's not too surprising, then, that the California Supreme Court granted review last...
