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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...
Draft California Ethics Opinion Would Define Acceptable “Puffery” in Negotiations
March 20, 2014
I’m not sure I’m surprised by the contents. Depends on how optimistic I was feeling before I read the draft. Available at bit.ly/1ma8X3S * * * DISCUSSION/PROPOSAL: Proposed Formal Opinion Interim No. 12-0007 considers: When an attorney is engaged in negotiations on behalf of a client, what conduct constitutes permissible “puffing” and what conduct constitutes improper false statements of material fact? The opinion interprets rule 3-700(B)(2) of the Rules of Professional Conduct...
March 20, 2014
I’m not sure I’m surprised by the contents. Depends on how optimistic I was feeling before I read the draft. Available at bit.ly/1ma8X3S * * * DISCUSSION/PROPOSAL: Proposed Formal Opinion Interim No. 12-0007 considers: When an attorney is engaged in negotiations on behalf of a client, what conduct constitutes permissible “puffing” and what conduct constitutes improper false statements of material fact? The opinion interprets rule 3-700(B)(2) of the Rules of Professional Conduct...
New LinkedIn Publishing Platform Open to Members
March 19, 2014
Those who use LinkedIn to connect and share information or seek a job now have a brand new option at their fingertips. According...
March 19, 2014
Those who use LinkedIn to connect and share information or seek a job now have a brand new option at their fingertips. According...
Sharp Decline in US Patent Litigation so far in 2014
March 19, 2014
According to data from Lex Machina, there has been a sharp decline in the number of patent litigation case filings so far in 2014....
March 19, 2014
According to data from Lex Machina, there has been a sharp decline in the number of patent litigation case filings so far in 2014....
The Odds Are Against EEOC Suing You
March 19, 2014
Being the target of an Equal Employment Opportunity Commission lawsuit is something all companies hope to avoid. But as DLA Piper...
March 19, 2014
Being the target of an Equal Employment Opportunity Commission lawsuit is something all companies hope to avoid. But as DLA Piper...
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...
Use Mediation Training to Be a Client-Centered Lawyer
March 19, 2014
As a former litigation lawyer, in-house litigation manager and mediation professor, I’ve come to appreciate how learning basic mediation skills can significantly improve an attorney’s overall legal skills. Like most of my colleagues, I was trained in the adversarial system of justice and believed that to be a “zealous advocate,” my role was to fight for my clients’ rights. After a career at a company where I often saw that legal problems were not the only important issues in a dispute,...
March 19, 2014
As a former litigation lawyer, in-house litigation manager and mediation professor, I’ve come to appreciate how learning basic mediation skills can significantly improve an attorney’s overall legal skills. Like most of my colleagues, I was trained in the adversarial system of justice and believed that to be a “zealous advocate,” my role was to fight for my clients’ rights. After a career at a company where I often saw that legal problems were not the only important issues in a dispute,...
Telling Daughter “Case Settled and We’re Happy With the Result” Violated Confidentiality
March 18, 2014
The school maintains Snay is precluded from enforcing the agreement because he violated a material term, the non-disclosure clause, when he disclosed to his daughter that his case against Gulliver was settled and he was happy with the result. 13. Confidentiality . . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person,except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or...
March 18, 2014
The school maintains Snay is precluded from enforcing the agreement because he violated a material term, the non-disclosure clause, when he disclosed to his daughter that his case against Gulliver was settled and he was happy with the result. 13. Confidentiality . . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person,except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or...
Teen’s Facebook Post Costs Her Dad $80,000. Oops.
March 18, 2014
So Dana Snay, a Miami teenager, is probably in big trouble right now. As the Miami Herald reports, an appeals court just tossed out her father’s $80,000 age-discrimination settlement because she violated the confidentiality agreement by bragging about it on Facebook. The offending post: Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT. “TMI,” cried Gulliver's lawyers. Patrick Snay had served...
March 18, 2014
So Dana Snay, a Miami teenager, is probably in big trouble right now. As the Miami Herald reports, an appeals court just tossed out her father’s $80,000 age-discrimination settlement because she violated the confidentiality agreement by bragging about it on Facebook. The offending post: Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT. “TMI,” cried Gulliver's lawyers. Patrick Snay had served...
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,...
