Menu
Blog Archives
Legal Theory Lexicon: The Coase Theorem
April 24, 2013
Introduction This week the Legal Theory Lexicon investigates the Coase theorem. Ronald Coase is a member of the law and economics...
April 24, 2013
Introduction This week the Legal Theory Lexicon investigates the Coase theorem. Ronald Coase is a member of the law and economics...
Establishing That Text Messages Are Admissible
April 24, 2013
Sending text messages or short electronic messages from one cellular phone to another is a very popular form of communication. “Text messaging users send or receive an average of 41.5 messages on a typical day,” concluded the Pew Research Center’s Internet & American Life Project. This number is even greater for cellular phone owners between the ages of 18 and 24. They “exchange an average of 109.5 messages on a normal day.” Given the volume of text messages, it is important that...
April 24, 2013
Sending text messages or short electronic messages from one cellular phone to another is a very popular form of communication. “Text messaging users send or receive an average of 41.5 messages on a typical day,” concluded the Pew Research Center’s Internet & American Life Project. This number is even greater for cellular phone owners between the ages of 18 and 24. They “exchange an average of 109.5 messages on a normal day.” Given the volume of text messages, it is important that...
Sixth Circuit Paints Vivid Picture of “Evident Partiality” Sufficient to Vacate Arbitration Award
April 24, 2013
One of the very few ways to show evident partiality by an arbitrator is to show the arbitrator had financial ties to a party or witness in the proceeding, another is to show the arbitrator prejudiced a party by reversing a procedural or evidentiary ruling during the hearing. The Sixth Circuit found a Michigan arbitrator committed both transgressions, and affirmed the district court’s decision to vacate the resulting arbitration award. Thomas Kinkade Co. v. White, __ F.3d __, 2013 WL 1296238...
April 24, 2013
One of the very few ways to show evident partiality by an arbitrator is to show the arbitrator had financial ties to a party or witness in the proceeding, another is to show the arbitrator prejudiced a party by reversing a procedural or evidentiary ruling during the hearing. The Sixth Circuit found a Michigan arbitrator committed both transgressions, and affirmed the district court’s decision to vacate the resulting arbitration award. Thomas Kinkade Co. v. White, __ F.3d __, 2013 WL 1296238...
Plaintiffs Must Arbitrate Individually, Even If It Means No “Pattern-or-Practice” Claim
April 24, 2013
All the cool kids are talking about class arbitration lately. . . There are the two casespending before SCOTUS, and now the Second Circuit confirms its place in the “in crowd” with a decision forcing a class of employees into arbitration in Parisi v. Goldman, Sachs & Co., __ F.3d __, 2013 WL 1149751 (2d Cir. Mar. 21, 2013). In Parisi, three female former employees alleged gender discrimination by Goldman, Sachs and sought to proceed as a class action in court. The plaintiffs acknowledged...
April 24, 2013
All the cool kids are talking about class arbitration lately. . . There are the two casespending before SCOTUS, and now the Second Circuit confirms its place in the “in crowd” with a decision forcing a class of employees into arbitration in Parisi v. Goldman, Sachs & Co., __ F.3d __, 2013 WL 1149751 (2d Cir. Mar. 21, 2013). In Parisi, three female former employees alleged gender discrimination by Goldman, Sachs and sought to proceed as a class action in court. The plaintiffs acknowledged...
Arbitration Clause Interpretation Round-Up
April 24, 2013
Following is a summary of five recent opinions of note concerning the interpretation of arbitration agreements and arbitration procedure: Klein v. Nabors Drilling USA L.P., Case No. 11-30824 (5th Cir. Feb. 26, 2013) (reversing denial of motion to compel arbitration; option in contract to agree to non-binding alternative dispute resolution proceedings did not render mandatory arbitration clause unenforceable). Noohi v. Toll Bros., Inc., Case No. 12-1261 (4th Cir. Feb. 26, 2013) (affirming denial...
April 24, 2013
Following is a summary of five recent opinions of note concerning the interpretation of arbitration agreements and arbitration procedure: Klein v. Nabors Drilling USA L.P., Case No. 11-30824 (5th Cir. Feb. 26, 2013) (reversing denial of motion to compel arbitration; option in contract to agree to non-binding alternative dispute resolution proceedings did not render mandatory arbitration clause unenforceable). Noohi v. Toll Bros., Inc., Case No. 12-1261 (4th Cir. Feb. 26, 2013) (affirming denial...
When Settlement Negotiations Hit a Wall
April 23, 2013
Settlement negotiations rarely proceed in a smooth forward motion; in fact, most feel more like a ride in a bumper car with a jerky stop and start motion. A good negotiator learns to move past the inevitable impasses. Here are 8 tips for negotiating past an impasse: Use Your Leverage. Use Objective Standards. Use Objective Procedures. Name the Dynamic. Exchange More Information. Take a Break. Carve Out Issues. Reexamine Your Position.
April 23, 2013
Settlement negotiations rarely proceed in a smooth forward motion; in fact, most feel more like a ride in a bumper car with a jerky stop and start motion. A good negotiator learns to move past the inevitable impasses. Here are 8 tips for negotiating past an impasse: Use Your Leverage. Use Objective Standards. Use Objective Procedures. Name the Dynamic. Exchange More Information. Take a Break. Carve Out Issues. Reexamine Your Position.
George Friedman Responds to Dan Solin’s Indictment of FINRA Arbitration
April 23, 2013
Last week, author Dan Solin, a long-time critic of FINRA, published a column in U.S. News & World Report attacking the FINRA arbitration forum as biased, unfair to investors and shrouded in secrecy. Presumably, the column was motivated by a federal judge’s recent decision to deny a FOIA request that PIABA (Public Investors Arbitration Bar Association) filed with the SEC to obtain what Solin describes as “very basic information about the way FINRA administers the arbitration process,...
April 23, 2013
Last week, author Dan Solin, a long-time critic of FINRA, published a column in U.S. News & World Report attacking the FINRA arbitration forum as biased, unfair to investors and shrouded in secrecy. Presumably, the column was motivated by a federal judge’s recent decision to deny a FOIA request that PIABA (Public Investors Arbitration Bar Association) filed with the SEC to obtain what Solin describes as “very basic information about the way FINRA administers the arbitration process,...
5th Circuit Reverses Vacatur in Perpetual-License Case
April 23, 2013
In another example of how difficult it is to overturn an arbitration award in federal court, the 5th U.S. Circuit Court of Appeals has reversed and remanded a vacatur.
April 23, 2013
In another example of how difficult it is to overturn an arbitration award in federal court, the 5th U.S. Circuit Court of Appeals has reversed and remanded a vacatur.
Can Super Mario Save Artificial Intelligence?
April 23, 2013
Human brains are remarkably inefficient in some key ways: our memories are lousy; our grasp of logic is shallow, and our capacity...
April 23, 2013
Human brains are remarkably inefficient in some key ways: our memories are lousy; our grasp of logic is shallow, and our capacity...
Choice of Law Provision Rendered Arbitration Agreement Unenforceable
April 23, 2013
Employee could not be compelled to arbitrate an employment discrimination claim brought under California statute where the arbitration clause was part of a contract that parties agreed be "construed in accordance with the internal substantive laws of The Commonwealth of Massachusetts," and the agreement did not clearly and unmistakably state that statutory discrimination claims were subject to the arbitration clause, as required by Massachusetts law. Defendants, Bingham McCutchen LLP,...
April 23, 2013
Employee could not be compelled to arbitrate an employment discrimination claim brought under California statute where the arbitration clause was part of a contract that parties agreed be "construed in accordance with the internal substantive laws of The Commonwealth of Massachusetts," and the agreement did not clearly and unmistakably state that statutory discrimination claims were subject to the arbitration clause, as required by Massachusetts law. Defendants, Bingham McCutchen LLP,...
