Blog Archives
Arbitration and the Contract Exchange
November 5, 2014
Andrew A. Schwartz, Associate Professor of Law at the University of Colorado Law School, has published Arbitration and the Contract Exchange, Ohio State Journal on Dispute Resolution, Vol. 29, No. 2, 2014; U of Colorado Law Legal Studies Research Paper No. 14-7. In his paper, Professor Schwartz examines why arbitration is the most appropriate method for resolving consumer contract-exchange disputes. Here is the abstract: A contract exchange, defined as an organized marketplace for the creation...
November 5, 2014
Andrew A. Schwartz, Associate Professor of Law at the University of Colorado Law School, has published Arbitration and the Contract Exchange, Ohio State Journal on Dispute Resolution, Vol. 29, No. 2, 2014; U of Colorado Law Legal Studies Research Paper No. 14-7. In his paper, Professor Schwartz examines why arbitration is the most appropriate method for resolving consumer contract-exchange disputes. Here is the abstract: A contract exchange, defined as an organized marketplace for the creation...
“Harmonizing” Contract Language Leads Two Circuit Courts To Deny Arbitration
November 5, 2014
Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts “harmonize” language from different parts of an agreement or from multiple agreements. The decision from the Eighth Circuit was a pretty easy one. The parties’ contract required them to mediate any dispute. Then it said: “if the dispute is not resolved through mediation, the parties may submit...
November 5, 2014
Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts “harmonize” language from different parts of an agreement or from multiple agreements. The decision from the Eighth Circuit was a pretty easy one. The parties’ contract required them to mediate any dispute. Then it said: “if the dispute is not resolved through mediation, the parties may submit...
What is Negotiation?, Part 2
November 4, 2014
We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation. I base these observations on my review of law school negotiation texts in a forthcoming article as well as general conversations with colleagues. I think that this...
November 4, 2014
We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation. I base these observations on my review of law school negotiation texts in a forthcoming article as well as general conversations with colleagues. I think that this...
Lurie and Lack on “Guided Choice”
November 4, 2014
The October 2014 issue of Dispute Resolution International (the journal of the Dispute Resolution Section of the IBA) features an excellent article by Chicago mediator/arbitrator/attorney Paul Lurie and Swiss/Israeli mediator/attorney Jeremy Lack on “Guided Choice Dispute Resolution Processes: Reducing the Time and Expense to Settlement.” As the title suggests, the logic of the piece stems from the fact that nearly all business disputes are resolved, and that savings are therefore best realized...
November 4, 2014
The October 2014 issue of Dispute Resolution International (the journal of the Dispute Resolution Section of the IBA) features an excellent article by Chicago mediator/arbitrator/attorney Paul Lurie and Swiss/Israeli mediator/attorney Jeremy Lack on “Guided Choice Dispute Resolution Processes: Reducing the Time and Expense to Settlement.” As the title suggests, the logic of the piece stems from the fact that nearly all business disputes are resolved, and that savings are therefore best realized...
Are Attorney Fees Now Easier for Patent Owners to Recover Absent Willful Infringement?
November 4, 2014
Through two decisions issued on April 29, 2014, the Supreme Court of the United States substantially changed the legal landscape for successful patent litigants seeking to recover their attorney fees from the losing party. In Octane Fitness v. ICON Health & Fitness, 134 S. Ct. 1749 (2014), the Supreme Court overturned a prior decision of the U.S. Court of Appeals for the Federal Circuit interpreting section 285 of the Patent Statute to authorize an award of attorney fees in only very narrow circumstances,...
November 4, 2014
Through two decisions issued on April 29, 2014, the Supreme Court of the United States substantially changed the legal landscape for successful patent litigants seeking to recover their attorney fees from the losing party. In Octane Fitness v. ICON Health & Fitness, 134 S. Ct. 1749 (2014), the Supreme Court overturned a prior decision of the U.S. Court of Appeals for the Federal Circuit interpreting section 285 of the Patent Statute to authorize an award of attorney fees in only very narrow circumstances,...
Northern District of Texas Orders Patent Royalty Dispute to Arbitration
November 4, 2014
The Northern District of Texas in Dallas has ordered a patent royalty dispute to arbitration. In Sazy v. DePuy Spine, LLC, No. 3:13-CV-4379-L (N. D. Tex., Sept. 18, 2014), a Texas physician entered into a Product Development Agreement (“PDA”) with several related corporations (“DePuy”) in early 2002. The agreement contained a Supplementary Agreement that outlined the circumstances under which the doctor could earn royalties if the proposed surgical mesh product became sold commercially. The PDA also...
November 4, 2014
The Northern District of Texas in Dallas has ordered a patent royalty dispute to arbitration. In Sazy v. DePuy Spine, LLC, No. 3:13-CV-4379-L (N. D. Tex., Sept. 18, 2014), a Texas physician entered into a Product Development Agreement (“PDA”) with several related corporations (“DePuy”) in early 2002. The agreement contained a Supplementary Agreement that outlined the circumstances under which the doctor could earn royalties if the proposed surgical mesh product became sold commercially. The PDA also...
Blog: “Judge Says ‘Over my Dead Body’ to Trustee’s Mediation Plan”
November 4, 2014
Stephen Sather, an attorney in Austin, Texas blogs at A Texas Bankruptcy Lawyer's Blog. In a recent post, he discusses the use of mediation in bankruptcy cases, using a recent example in a bankruptcy adversary proceeding in the Southern District of Texas. Apparently, the trustee and the other parties wanted to mediate. When they advised the judge of their request, the judge denied the motion, and during the course of the proceeding asked if estate funds would be used to pay the mediator and espoused...
November 4, 2014
Stephen Sather, an attorney in Austin, Texas blogs at A Texas Bankruptcy Lawyer's Blog. In a recent post, he discusses the use of mediation in bankruptcy cases, using a recent example in a bankruptcy adversary proceeding in the Southern District of Texas. Apparently, the trustee and the other parties wanted to mediate. When they advised the judge of their request, the judge denied the motion, and during the course of the proceeding asked if estate funds would be used to pay the mediator and espoused...
To Puff or Not to Puff . . . (or When and How to Puff)
November 3, 2014
I love teaching law students about misrepresentation in negotiation. I call this class, “lying like a lawyer.” Of course, civilians (i.e., non-lawyers) regularly fudge the facts, let’s call it. While it might be nice if there were bright-line norms of scrupulous honesty that were universally followed, that’s never gonna happen. I’m no expert on moral philosophy or the social psychology of lying, but I think that most people probably believe that some misrepresentation is acceptable...
November 3, 2014
I love teaching law students about misrepresentation in negotiation. I call this class, “lying like a lawyer.” Of course, civilians (i.e., non-lawyers) regularly fudge the facts, let’s call it. While it might be nice if there were bright-line norms of scrupulous honesty that were universally followed, that’s never gonna happen. I’m no expert on moral philosophy or the social psychology of lying, but I think that most people probably believe that some misrepresentation is acceptable...
What Peter Drucker Knew About 2020
November 3, 2014
When PwC released its annual survey of corporate chief executives for 2014, it was immediately obvious that change is on leaders’ brains: “As CEOs plan their strategies to take advantage of transformational shifts,” the consultancy reported, “they are also assessing their current capabilities – and finding that everything is fair game for reinvention.” It’s no wonder why. “Every few hundred years throughout Western history, a sharp transformation has occurred,” Peter Drucker...
November 3, 2014
When PwC released its annual survey of corporate chief executives for 2014, it was immediately obvious that change is on leaders’ brains: “As CEOs plan their strategies to take advantage of transformational shifts,” the consultancy reported, “they are also assessing their current capabilities – and finding that everything is fair game for reinvention.” It’s no wonder why. “Every few hundred years throughout Western history, a sharp transformation has occurred,” Peter Drucker...
Consumer Surveys and Other Market-Based Methodologies in Patent Damages
November 3, 2014
Once validity and infringement of the patent in suit is assumed, the central inquiry in calculating economic damages is one of cause and effect. Indeed, patent damages analysis is not much more than a hunt for a principled causal relationship. To wit, it is this causal relationship that the damages expert is asked to summon in the counterfactual world that is Georgia Pacific. Courts recognize that this is easier said than done: “Determining a fair and reasonable royalty is often . . . a difficult...
November 3, 2014
Once validity and infringement of the patent in suit is assumed, the central inquiry in calculating economic damages is one of cause and effect. Indeed, patent damages analysis is not much more than a hunt for a principled causal relationship. To wit, it is this causal relationship that the damages expert is asked to summon in the counterfactual world that is Georgia Pacific. Courts recognize that this is easier said than done: “Determining a fair and reasonable royalty is often . . . a difficult...
