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Arbitration
Baseball has the Best Rules: Using Arbitration to Solve FRAND Disputes
March 21, 2014
How to calculate Fair, Reasonable and Nondiscriminatory (FRAND) royalties seems like one of the most intractable problems firms, standard setting organizations and the courts are grappling with. No wonder, there is sparse authority and relatively few litigated cases. Two of the most thoughtful scholars on antitrust intellectual property issues — Professors Mark Lemley and Carl Shapiro — have weighed in and issued a paper outlining an interesting solution to the FRAND licensing problem...
March 21, 2014
How to calculate Fair, Reasonable and Nondiscriminatory (FRAND) royalties seems like one of the most intractable problems firms, standard setting organizations and the courts are grappling with. No wonder, there is sparse authority and relatively few litigated cases. Two of the most thoughtful scholars on antitrust intellectual property issues — Professors Mark Lemley and Carl Shapiro — have weighed in and issued a paper outlining an interesting solution to the FRAND licensing problem...
Dropbox adds Arbitration Clause to its Terms of Service
March 20, 2014
I have a Dropbox account and use it to store a lot of my cloud-based documents. Dropbox emailed its users late last week, announcing changes to its Terms of Service, including the addition of an arbitration clause. Notably, the clause included submission of disputes to the AAA for arbitration, a right to opt out within 30 days, an agreement that Dropbox will pay all arbitration fees for claims of less than $75,000, a “bonus” payment of $1,000 if the award is greater than any Dropbox offer...
March 20, 2014
I have a Dropbox account and use it to store a lot of my cloud-based documents. Dropbox emailed its users late last week, announcing changes to its Terms of Service, including the addition of an arbitration clause. Notably, the clause included submission of disputes to the AAA for arbitration, a right to opt out within 30 days, an agreement that Dropbox will pay all arbitration fees for claims of less than $75,000, a “bonus” payment of $1,000 if the award is greater than any Dropbox offer...
Supreme Court to Consider Cert Petition Friday Regarding Delaware Business Arbitration Program
March 20, 2014
The certiorari petition in Strine v. Delaware Coalition For Open Government, Inc. (seeking review of the U.S. 3rd Circuit Court of Appeals decision holding that confidential Delaware Business Arbitration Program proceedings would be contrary to “a First Amendment right of access to Delaware’s government-sponsored arbitrations”) has been distributed to the Justices of the US Supreme Court for review at their regular conference this coming Friday (March 21, 2014). It is therefore likely...
March 20, 2014
The certiorari petition in Strine v. Delaware Coalition For Open Government, Inc. (seeking review of the U.S. 3rd Circuit Court of Appeals decision holding that confidential Delaware Business Arbitration Program proceedings would be contrary to “a First Amendment right of access to Delaware’s government-sponsored arbitrations”) has been distributed to the Justices of the US Supreme Court for review at their regular conference this coming Friday (March 21, 2014). It is therefore likely...
Don’t Cut Us Out of Arb Review, Says Ninth Circuit
March 20, 2014
You can agree to disagree, but can you agree to preclude a court from reviewing an arbitration award? According to David McMahon of Barger & Wolen, the Ninth Circuit U.S. Court of Appeals recently gave a definitive “no” to the question. The case was Burton v. Class Counsel, and the appeal arose from multidistrict litigation relating to wage-and-hour claims against Wal-Mart; the matter settled for $85 million, McMahon says, and the parties all agreed to have a master settle any fee disputes...
March 20, 2014
You can agree to disagree, but can you agree to preclude a court from reviewing an arbitration award? According to David McMahon of Barger & Wolen, the Ninth Circuit U.S. Court of Appeals recently gave a definitive “no” to the question. The case was Burton v. Class Counsel, and the appeal arose from multidistrict litigation relating to wage-and-hour claims against Wal-Mart; the matter settled for $85 million, McMahon says, and the parties all agreed to have a master settle any fee disputes...
CCA Guide to Best Practices in Commercial Arbitration
March 19, 2014
The Third Edition of the College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration is now available. The expanded guide was edited by Carl Ingwalson, Vivien Shelanski, and past Disputingguest blogger James Gaitis. The newly revised guide also includes contributions from a number of College of Commercial Arbitrators fellows. Here is a brief description of the guide: The aim of the Guide is to identify best practices that arbitrators can employ to provide...
March 19, 2014
The Third Edition of the College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration is now available. The expanded guide was edited by Carl Ingwalson, Vivien Shelanski, and past Disputingguest blogger James Gaitis. The newly revised guide also includes contributions from a number of College of Commercial Arbitrators fellows. Here is a brief description of the guide: The aim of the Guide is to identify best practices that arbitrators can employ to provide...
The “Circle of Assent” Doctrine and the Mandatory Pre-Dispute Arbitration Clause: When the Unconscionable Contract Analysis Just Won’t Do
March 18, 2014
Is a mandatory arbitration clause that denies basic due process rights unconscionable? You would think so but think again. The doctrine of unconscionability has technical elements that must be met. Courts around the country have held that the denial of a due process right doesn’t meet the test of substantive unconscionability analysis. Is this the end of the line or is there an alternative analysis that will address the unfairness of such a provision? This article urges that a little known doctrine,...
March 18, 2014
Is a mandatory arbitration clause that denies basic due process rights unconscionable? You would think so but think again. The doctrine of unconscionability has technical elements that must be met. Courts around the country have held that the denial of a due process right doesn’t meet the test of substantive unconscionability analysis. Is this the end of the line or is there an alternative analysis that will address the unfairness of such a provision? This article urges that a little known doctrine,...
Dallas COA Orders Custom Home Dispute to Arbitration
March 18, 2014
The Dallas Court of Appeals has held that a dispute over the construction of a custom home should be arbitrated. In the case, In...
March 18, 2014
The Dallas Court of Appeals has held that a dispute over the construction of a custom home should be arbitrated. In the case, In...
Manifest Disregard is “Judicial Gloss” on Statutory Ground in Second Circuit
March 17, 2014
In a summary order issued today in TiVo Inc. v. Goldwasser, the Second Circuit upheld the rejection of a manifest disregard of the law challenge. The Court lists the FAA grounds for vacatur and then states the circuit’s position that manifest disregard may be applied as “judicial gloss” on the statutory grounds. The order then devotes around six pages to a review of the petitioner’s legal arguments, finding none shows manifest disregard. The court, towards the end of the order, briefly addresses...
March 17, 2014
In a summary order issued today in TiVo Inc. v. Goldwasser, the Second Circuit upheld the rejection of a manifest disregard of the law challenge. The Court lists the FAA grounds for vacatur and then states the circuit’s position that manifest disregard may be applied as “judicial gloss” on the statutory grounds. The order then devotes around six pages to a review of the petitioner’s legal arguments, finding none shows manifest disregard. The court, towards the end of the order, briefly addresses...
NLRB May Force Employers to Defend Themselves Twice
March 13, 2014
Defending unfair practice claims could get harder. According to a post by associate Samantha M. Kagan on Reed Smith’s...
March 13, 2014
Defending unfair practice claims could get harder. According to a post by associate Samantha M. Kagan on Reed Smith’s...
Court OKs Antitrust Class Action Waivers in Arbitration Clauses
March 13, 2014
After years of ambiguity about the enforceability of contract clauses mandating arbitration and waiving class action rights in domestic antitrust cases, the U.S. Supreme Court has finally brought clarity to the situation. In June 2013 the court decided American Express v. Italian Colors Restaurant, holding that arbitration clauses and waivers of class action rights are enforceable in domestic antitrust cases. Regardless of whether one agrees with the court's conclusion, the American Express...
March 13, 2014
After years of ambiguity about the enforceability of contract clauses mandating arbitration and waiving class action rights in domestic antitrust cases, the U.S. Supreme Court has finally brought clarity to the situation. In June 2013 the court decided American Express v. Italian Colors Restaurant, holding that arbitration clauses and waivers of class action rights are enforceable in domestic antitrust cases. Regardless of whether one agrees with the court's conclusion, the American Express...
