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Supreme Court Affirms Liability of SIGA Technologies to PharmAthene Based on Failure to Negotiate in Good Faith
June 14, 2013
SIGA Technologies, Inc. v. PharmAthene, Inc., Del. Supr., No. 314, 2012 (May 24, 2013). This Delaware Supreme Court decision was the subject of a BloombergBusinessweek article on Sunday, May 26. The Court of Chancery’s opinion was highlighted on these pages at this link. Also, several other prior Chancery decisions in this case were also outlined on these pages. Issue Addressed: Is an agreement to negotiate in good faith in accordance with a term sheet an enforceable obligation? Short...
June 14, 2013
SIGA Technologies, Inc. v. PharmAthene, Inc., Del. Supr., No. 314, 2012 (May 24, 2013). This Delaware Supreme Court decision was the subject of a BloombergBusinessweek article on Sunday, May 26. The Court of Chancery’s opinion was highlighted on these pages at this link. Also, several other prior Chancery decisions in this case were also outlined on these pages. Issue Addressed: Is an agreement to negotiate in good faith in accordance with a term sheet an enforceable obligation? Short...
Plaintiffs Discover Risks of Refusing to Participate in Predictive Coding Discovery
June 13, 2013
Let’s see whether it works: Discovery! Are you excited? How about this: Technology Assisted Review!! Nothing yet? How about: Predictive Coding!!! We gave you three exclamation points for that one. Are you pumped yet? Yeah, neither are we. But we're going to discuss these things anyway, in particular the way in which the court addressed them in a recent MDL decision in the hip implant litigation. In re Biomet M2A Magnum Hip Implant Prods. Liab. Litig., 2013 WL 1729682...
June 13, 2013
Let’s see whether it works: Discovery! Are you excited? How about this: Technology Assisted Review!! Nothing yet? How about: Predictive Coding!!! We gave you three exclamation points for that one. Are you pumped yet? Yeah, neither are we. But we're going to discuss these things anyway, in particular the way in which the court addressed them in a recent MDL decision in the hip implant litigation. In re Biomet M2A Magnum Hip Implant Prods. Liab. Litig., 2013 WL 1729682...
Early Case Analysis and Planned Negotiation
June 5, 2013
Perhaps the single least recognized, most effective strategy for managing streams of commercial disputes is early intervention. The bundle of skills implicated by this strategy include Planned Early Negotiation, Early Case Assessment, Risk Analysis, and Decision Tree Analysis. But the objective of all of these tools is the same: To place the decision-maker within the client in a position to make an informed choice on how the matter will proceed, driven by business — not legal – objectives. The...
June 5, 2013
Perhaps the single least recognized, most effective strategy for managing streams of commercial disputes is early intervention. The bundle of skills implicated by this strategy include Planned Early Negotiation, Early Case Assessment, Risk Analysis, and Decision Tree Analysis. But the objective of all of these tools is the same: To place the decision-maker within the client in a position to make an informed choice on how the matter will proceed, driven by business — not legal – objectives. The...
The Compensation Fund: Feinberg’s Back
June 4, 2013
Massachusetts Governor Deval Patrick and Boston Mayor Tom Menino have appointed Ken Feinberg to run the One Fund Boston for victims of the Boston marathon bombing. The Enterprise has an interview with Feinberg as doesMSNBC. Similar to his work in prior compensation funds, Feinberg will be holding town hall meetings with the public (today and tomorrow), and meeting privately with victims. According to The Enterprise: The final protocol and claim forms will be available on the fund’s...
June 4, 2013
Massachusetts Governor Deval Patrick and Boston Mayor Tom Menino have appointed Ken Feinberg to run the One Fund Boston for victims of the Boston marathon bombing. The Enterprise has an interview with Feinberg as doesMSNBC. Similar to his work in prior compensation funds, Feinberg will be holding town hall meetings with the public (today and tomorrow), and meeting privately with victims. According to The Enterprise: The final protocol and claim forms will be available on the fund’s...
The Other Costs of a Litigated Divorce
June 2, 2013
Collaborative lawyers are pretty good about explaining the options a person has in starting on a divorce. The old standard approach is litigation. The main alternative is Collaborative Law. Another approach, which is used by some people, is to represent themselves, which is risky. Other posts go into more detail about the dangers of representing yourself. For now, I would like to focus on the costs of litigation. The most obvious cost of litigation is the attorneys' fees and other costs...
June 2, 2013
Collaborative lawyers are pretty good about explaining the options a person has in starting on a divorce. The old standard approach is litigation. The main alternative is Collaborative Law. Another approach, which is used by some people, is to represent themselves, which is risky. Other posts go into more detail about the dangers of representing yourself. For now, I would like to focus on the costs of litigation. The most obvious cost of litigation is the attorneys' fees and other costs...
A Review of the American Arbitration Association’s New ClauseBuilder Tool
May 31, 2013
In December 2012, the American Arbitration Association (AAA) launched their ClauseBuilder tool online. Anyone can access this tool without signing on to the AAA’s website by going to www.clausebuilder.org. The AAA indicates that the tool will assist “individuals and organizations in drafting clear and effective arbitration and mediation clauses.” In the initial news release, the AAA noted that the tool is based on the AAA’s standard arbitration agreement and that it is limited to commercial...
May 31, 2013
In December 2012, the American Arbitration Association (AAA) launched their ClauseBuilder tool online. Anyone can access this tool without signing on to the AAA’s website by going to www.clausebuilder.org. The AAA indicates that the tool will assist “individuals and organizations in drafting clear and effective arbitration and mediation clauses.” In the initial news release, the AAA noted that the tool is based on the AAA’s standard arbitration agreement and that it is limited to commercial...
Choosing A Forum For Dispute Resolution
May 29, 2013
To the best of our knowledge, funding contracts generally require arbitration to resolve disputes. While arbitration has significant appeal, it may not always be the optimal arrangement for reasons laid out below. Therefore, the model contract defaults to New York courts as the forum for dispute resolution. Arbitration’s Appeal and Downsides Arbitration has one significant advantage over courts: secrecy (confidentiality). Even the fact of the dispute can be kept secret, which preserves...
May 29, 2013
To the best of our knowledge, funding contracts generally require arbitration to resolve disputes. While arbitration has significant appeal, it may not always be the optimal arrangement for reasons laid out below. Therefore, the model contract defaults to New York courts as the forum for dispute resolution. Arbitration’s Appeal and Downsides Arbitration has one significant advantage over courts: secrecy (confidentiality). Even the fact of the dispute can be kept secret, which preserves...
Judicial References: A Remedy for More Efficient Dispute Resolution
May 23, 2013
With cash-strapped court systems across the country making cuts that result in ever-growing dockets, achieving efficient dispute resolution through litigation is becoming more challenging. In California, one remedy could be the use of judicial references. This involves appointing a neutral to serve the same role as a sitting judge. The authority for judicial references comes both from the California Constitution, Article VI, section 21, which provides for the appointment of temporary judges,...
May 23, 2013
With cash-strapped court systems across the country making cuts that result in ever-growing dockets, achieving efficient dispute resolution through litigation is becoming more challenging. In California, one remedy could be the use of judicial references. This involves appointing a neutral to serve the same role as a sitting judge. The authority for judicial references comes both from the California Constitution, Article VI, section 21, which provides for the appointment of temporary judges,...
Three Things to Know About Mediating Licensing Disputes
May 22, 2013
The number of IP disputes resolved in mediation has continued to increase as attorneys make efforts to find speedy resolutions and cut litigation time and cost for their clients. Only a small percentage of costly patent infringement cases actually go to trial; approximately 90 percent of them are settled. Business people and their counsel recognize that mediation is a cost-effective, low-risk process with a remarkably high success rate when conducted by an experienced mediator. In mediation,...
May 22, 2013
The number of IP disputes resolved in mediation has continued to increase as attorneys make efforts to find speedy resolutions and cut litigation time and cost for their clients. Only a small percentage of costly patent infringement cases actually go to trial; approximately 90 percent of them are settled. Business people and their counsel recognize that mediation is a cost-effective, low-risk process with a remarkably high success rate when conducted by an experienced mediator. In mediation,...
The Present and Future of ADR
May 21, 2013
At the recent ABA Dispute Resolution Section conference in Chicago a panel that included myself, Debbie Masucci, past president...
May 21, 2013
At the recent ABA Dispute Resolution Section conference in Chicago a panel that included myself, Debbie Masucci, past president...
