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Perfecting Security Interests: Notice To The Attorney, And The Uniform Commercial Code, Part 2
October 2, 2013
In Part 1, I discussed the purpose and creation of security interests in claims. In this part, I will examine the additional steps required to perfect a security interest, thus making it effective in the event of payment default by the plaintiff or another eventuality that either obfuscates or frustrates collection of the settlement proceeds. As a general matter, the mere creation of a security interest in a claim gives the provider certain preferential rights over other stakeholders, while...
October 2, 2013
In Part 1, I discussed the purpose and creation of security interests in claims. In this part, I will examine the additional steps required to perfect a security interest, thus making it effective in the event of payment default by the plaintiff or another eventuality that either obfuscates or frustrates collection of the settlement proceeds. As a general matter, the mere creation of a security interest in a claim gives the provider certain preferential rights over other stakeholders, while...
Court Rejects Defenses to Arbitration by Non-Signatory and Appoints Umpire
October 2, 2013
In a decision granting a workers’ compensation insurer’s petition to appoint an umpire and proceed with arbitration, a court recently analyzed and rejected a number of defenses to arbitration made by the two affiliated company respondents. The court considered whether one of the companies, a non-signatory to the underlying agreement, could be compelled to arbitrate. Applying principles of actual and apparent agency, the court found that the signatory had authority to obtain insurance for the non-signatory...
October 2, 2013
In a decision granting a workers’ compensation insurer’s petition to appoint an umpire and proceed with arbitration, a court recently analyzed and rejected a number of defenses to arbitration made by the two affiliated company respondents. The court considered whether one of the companies, a non-signatory to the underlying agreement, could be compelled to arbitrate. Applying principles of actual and apparent agency, the court found that the signatory had authority to obtain insurance for the non-signatory...
How To Keep The Client Involved In A Mediation Decision
October 2, 2013
It’s an attorney’s job, as best as possible, to help the client reach his/her goals. The attorney has to come up with a game plan to reach those goals and, with the client’s approval, put the plan into action. Mediation should be part of any plan, because it can save the client money, time, energy, effort and emotion compared to litigation. For an attorney, determining those goals, and reasons for them, is a critical step in the process. If the issue is money, why that amount? What...
October 2, 2013
It’s an attorney’s job, as best as possible, to help the client reach his/her goals. The attorney has to come up with a game plan to reach those goals and, with the client’s approval, put the plan into action. Mediation should be part of any plan, because it can save the client money, time, energy, effort and emotion compared to litigation. For an attorney, determining those goals, and reasons for them, is a critical step in the process. If the issue is money, why that amount? What...
Juggling Apples: Proportionality & Estoppel
October 1, 2013
…[T]here is an additional, more persuasive reason to limit Apple’s production — the court is required to limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” This is the essence of proportionality — an all-to-often ignored discovery principle. Magistrate Judge Paul Grewal Apple Inc. v. Samsung Elecs. Co., 2013 U.S. Dist. LEXIS 116493 (N.D. Cal. Aug. 14, 2013). Federal Rule of Civil Procedure Rule 26(b)(2)(C) is often ignored by attorneys. Most...
October 1, 2013
…[T]here is an additional, more persuasive reason to limit Apple’s production — the court is required to limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” This is the essence of proportionality — an all-to-often ignored discovery principle. Magistrate Judge Paul Grewal Apple Inc. v. Samsung Elecs. Co., 2013 U.S. Dist. LEXIS 116493 (N.D. Cal. Aug. 14, 2013). Federal Rule of Civil Procedure Rule 26(b)(2)(C) is often ignored by attorneys. Most...
E-Mediation Can Simplify E-Discovery Disputes
October 1, 2013
When the concept of mediation was introduced in the 1980s, it was adopted into the mainstream practice of law for the purpose of settling an entire case. In reality, the purpose of mediation is to facilitate the resolution ofany dispute, whether before or during litigation. Every case now has some form of electronic evidence — emails, texts, GPS data, spreadsheets, social media postings, and word processing documents, to name a few. What do lawyers fight about most in a civil lawsuit? E-discovery....
October 1, 2013
When the concept of mediation was introduced in the 1980s, it was adopted into the mainstream practice of law for the purpose of settling an entire case. In reality, the purpose of mediation is to facilitate the resolution ofany dispute, whether before or during litigation. Every case now has some form of electronic evidence — emails, texts, GPS data, spreadsheets, social media postings, and word processing documents, to name a few. What do lawyers fight about most in a civil lawsuit? E-discovery....
Pricing Legal Claims IV: Staged Funding Addresses The Nonmonotonic Trajectory Of Claim Value
October 1, 2013
As I noted in the last post, the ‘active managers’ accounted for by the real options approach want the flexibility to calibrate their investments in litigation to developments in the case at hand and the portfolio as a whole. Fully staged financing, as reflected in the model, provides that flexibility. However one of the underlying features of claim value that drives that desire for flexibility and makes staged financing so useful deserves more explicit examination: the nonmonotonic trajectory...
October 1, 2013
As I noted in the last post, the ‘active managers’ accounted for by the real options approach want the flexibility to calibrate their investments in litigation to developments in the case at hand and the portfolio as a whole. Fully staged financing, as reflected in the model, provides that flexibility. However one of the underlying features of claim value that drives that desire for flexibility and makes staged financing so useful deserves more explicit examination: the nonmonotonic trajectory...
The Not-So-Effective Vindication Decision
October 1, 2013
Professor Linda S. Mullenix, Morris & Rita Atlas Chair in Advocacy at the University of Texas School of Law, has published, The Practice: The Not-So-Effective Vindication Decision: The U.S. Supreme Court’s Ruling in Italian Colors and Its Aftermath Are a Big Blow to Class Action Bar, National Law Journal, Vol. 36, No. 2, p. 30, September 2013; U of Texas Law, Public Law Research Paper No. 517. In her article, Professor Mullenix discusses the far-reaching effect of the United States Supreme...
October 1, 2013
Professor Linda S. Mullenix, Morris & Rita Atlas Chair in Advocacy at the University of Texas School of Law, has published, The Practice: The Not-So-Effective Vindication Decision: The U.S. Supreme Court’s Ruling in Italian Colors and Its Aftermath Are a Big Blow to Class Action Bar, National Law Journal, Vol. 36, No. 2, p. 30, September 2013; U of Texas Law, Public Law Research Paper No. 517. In her article, Professor Mullenix discusses the far-reaching effect of the United States Supreme...
App Of The Week: HeinOnline – Law Journals And Other Legal Research Materials
October 1, 2013
HeinOnline swims with the big legal research subscription-based sharks by filling a niche and doing it well. The service...
October 1, 2013
HeinOnline swims with the big legal research subscription-based sharks by filling a niche and doing it well. The service...
Denial of Arbitration of Stop-Loss Insurance Dispute Affirmed Under State Law
October 1, 2013
The president of a corporate administrator of a trust appealed the denial of his motion to compel arbitration against a company that sued him individually in a case seeking benefits and other relief for disputed medical stop-loss coverage. The appellate court initially held that, although the president was a non-signatory to the underlying agreements, the president could enforce the arbitration provisions based on agency and the plaintiff’s allegations, which treated the president and his corporation...
October 1, 2013
The president of a corporate administrator of a trust appealed the denial of his motion to compel arbitration against a company that sued him individually in a case seeking benefits and other relief for disputed medical stop-loss coverage. The appellate court initially held that, although the president was a non-signatory to the underlying agreements, the president could enforce the arbitration provisions based on agency and the plaintiff’s allegations, which treated the president and his corporation...
MySpace Photos as Impeachment Evidence
September 30, 2013
In a case involving claims of self-defense, the Trial Court excluded photos of the victim from MySpace holding a gun and wearing gang colors. Three prosecution witnesses claimed they had never seen the victim with a gun before. The Trial Court excluded the MySpace photos on the grounds the three photos were prejudicial. The Court of Appeals reversed. The photos should have been admitted as impeachment evidence to contradict the testimony of the prosecution witnesses. United States v. Garcia,2013...
September 30, 2013
In a case involving claims of self-defense, the Trial Court excluded photos of the victim from MySpace holding a gun and wearing gang colors. Three prosecution witnesses claimed they had never seen the victim with a gun before. The Trial Court excluded the MySpace photos on the grounds the three photos were prejudicial. The Court of Appeals reversed. The photos should have been admitted as impeachment evidence to contradict the testimony of the prosecution witnesses. United States v. Garcia,2013...
