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Comcast Corp. v. Behrend: Plot Twists and a Surprise Ending
July 17, 2013
On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), an antitrust monopoly case in which the Court determined “[w]hether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awardingdamages on a class-wide basis.” Comcast Corp. v. Behrend, 133 S. Ct. 24 (2012). Although the Court’s decision was highly anticipated,...
July 17, 2013
On March 27, 2013, the U.S. Supreme Court decided Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), an antitrust monopoly case in which the Court determined “[w]hether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awardingdamages on a class-wide basis.” Comcast Corp. v. Behrend, 133 S. Ct. 24 (2012). Although the Court’s decision was highly anticipated,...
FINRA to Conduct Background Checks on Arbitrators
July 17, 2013
BNA has reported that FINRA has implemented a new policy and will now conduct annual background checks as well as an additional review of arbitrators before appointing them to new cases. This change in policy was prompted by FINRA’s discovery last year that one of its arbitrators had been indicted for the uanuthorized practice of law. It’s too bad that the forum needs to implement measures such as these to make sure the parties have neutral and ethical arbitrators; the arbitrator’s disclosure...
July 17, 2013
BNA has reported that FINRA has implemented a new policy and will now conduct annual background checks as well as an additional review of arbitrators before appointing them to new cases. This change in policy was prompted by FINRA’s discovery last year that one of its arbitrators had been indicted for the uanuthorized practice of law. It’s too bad that the forum needs to implement measures such as these to make sure the parties have neutral and ethical arbitrators; the arbitrator’s disclosure...
Challenging Awards for Lack of Disclosure
July 17, 2013
The May 2013 issue of the IBA Dispute Resolution Section’s journal, Dispute Resolution International, has a concise and compelling article by Mark H. Alcott addressing “Post-Award Attacks on Arbitrators.” The title speaks for itself: the author is harshly critical of challenges to arbitral impartiality that are first asserted after an award has issued. Challenges to “would-be arbitrators because of interests or relationships that are marginal, at best,” cause delay, unnecessary...
July 17, 2013
The May 2013 issue of the IBA Dispute Resolution Section’s journal, Dispute Resolution International, has a concise and compelling article by Mark H. Alcott addressing “Post-Award Attacks on Arbitrators.” The title speaks for itself: the author is harshly critical of challenges to arbitral impartiality that are first asserted after an award has issued. Challenges to “would-be arbitrators because of interests or relationships that are marginal, at best,” cause delay, unnecessary...
Walk a Block in My Socks, Walk a Mile in Their Shoes…
July 17, 2013
Not so long ago I was a claiming party as part of a group of plaintiffs in the stead of my elderly parents in a multiparty,...
July 17, 2013
Not so long ago I was a claiming party as part of a group of plaintiffs in the stead of my elderly parents in a multiparty,...
Equal Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations
July 17, 2013
Frederic G. Sourgens, Associate Professor of Law at Washburn University School of Law has publishedEqual Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations, North Carolina Journal of International Law and Commercial Regulation, Vol. 38, No. 4, 2013. In his article, Professor Sourgens discusses the procedure for establishing jurisdictional proof in investor-state arbitral proceedings. Here is the abstract: This article develops the process of jurisdictional proof in investor-state...
July 17, 2013
Frederic G. Sourgens, Associate Professor of Law at Washburn University School of Law has publishedEqual Contest of Arms, Jurisdictional Proof in Investor-State Arbitrations, North Carolina Journal of International Law and Commercial Regulation, Vol. 38, No. 4, 2013. In his article, Professor Sourgens discusses the procedure for establishing jurisdictional proof in investor-state arbitral proceedings. Here is the abstract: This article develops the process of jurisdictional proof in investor-state...
Supreme Court Limits ATS Litigation—But Door Remains Slightly Ajar
July 16, 2013
In Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), the U.S. Supreme Court addressed the applicability of the Alien Tort Statute (ATS) to alleged violations of international law committed by multinational corporations overseas. Although the Supreme Court rejected the claims in Kiobel because of the presumption against the extraterritorial application of statutes such as the ATS, the Supreme Court did not completely slam the door shut on ATS litigation. What types of ATS cases survive Kiobel will...
July 16, 2013
In Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), the U.S. Supreme Court addressed the applicability of the Alien Tort Statute (ATS) to alleged violations of international law committed by multinational corporations overseas. Although the Supreme Court rejected the claims in Kiobel because of the presumption against the extraterritorial application of statutes such as the ATS, the Supreme Court did not completely slam the door shut on ATS litigation. What types of ATS cases survive Kiobel will...
Taking Advantage of ADR in the Entertainment Industry
July 16, 2013
As courts throughout the U.S. have become more and more backlogged with cases, and as the financial stakes in litigation have grown increasingly larger, so too has the need for quality ADR mechanisms. Certain substantive legal areas lend themselves particularly well to ADR, which include Intellectual Property/Entertainment matters. The importance of secrecy and privacy, the need for expertise and the flexibility that ADR offers are three reasons why IP and entertainment practitioners should...
July 16, 2013
As courts throughout the U.S. have become more and more backlogged with cases, and as the financial stakes in litigation have grown increasingly larger, so too has the need for quality ADR mechanisms. Certain substantive legal areas lend themselves particularly well to ADR, which include Intellectual Property/Entertainment matters. The importance of secrecy and privacy, the need for expertise and the flexibility that ADR offers are three reasons why IP and entertainment practitioners should...
Reflections on 2013 Supreme Court Arbitration Decisions
July 16, 2013
I have had a few days to digest the Supreme Court’s most recent opinions interpreting the Federal Arbitration Act (Oxford Health Plans LLC v. Sutter, see blog post here; and American Express Co. v. Italian Colors Restaurant, see blog posts here and here) and offer the following reflections: Sutter affirmed the broad power of the arbitrators to decide issues properly submitted to them even if the resulting decision seems implausible. Italian Colors affirmed the power of parties...
July 16, 2013
I have had a few days to digest the Supreme Court’s most recent opinions interpreting the Federal Arbitration Act (Oxford Health Plans LLC v. Sutter, see blog post here; and American Express Co. v. Italian Colors Restaurant, see blog posts here and here) and offer the following reflections: Sutter affirmed the broad power of the arbitrators to decide issues properly submitted to them even if the resulting decision seems implausible. Italian Colors affirmed the power of parties...
Washington Legislature Says Statute of Limitations Applies to Arbitration Proceedings
July 16, 2013
An interesting arbitration-related development has come out of the Washington Legislature. In an apparent response to a 2010 Washington Supreme Court ruling, lawmakers have amended the state’s Uniform Arbitration Act to allow statutes of limitations to apply to arbitral proceedings. The bill was purportedly filed in response to the holding in Broom v. Morgan Stanley DW, Inc. which said a Financial Industry Regulatory Authority panel exceeded its authority when it dismissed arbitral claims based...
July 16, 2013
An interesting arbitration-related development has come out of the Washington Legislature. In an apparent response to a 2010 Washington Supreme Court ruling, lawmakers have amended the state’s Uniform Arbitration Act to allow statutes of limitations to apply to arbitral proceedings. The bill was purportedly filed in response to the holding in Broom v. Morgan Stanley DW, Inc. which said a Financial Industry Regulatory Authority panel exceeded its authority when it dismissed arbitral claims based...
Categorize Your Case to Learn Its Value
July 16, 2013
The Problem: You think that your client’s pain is so severe and different than the typical client that you value the case higher than the other side will pay. The Solution: Understand what category your adversary has put your case in and either accept it or try and create a new category of value. Insurers have defined market values of cases in strict categories depending on a host of factors that have been vetted by actuarial specialists with complex software programs. This provides a reasonable...
July 16, 2013
The Problem: You think that your client’s pain is so severe and different than the typical client that you value the case higher than the other side will pay. The Solution: Understand what category your adversary has put your case in and either accept it or try and create a new category of value. Insurers have defined market values of cases in strict categories depending on a host of factors that have been vetted by actuarial specialists with complex software programs. This provides a reasonable...
