Menu
News
Good Faith Duty As Alternative To Fiduciary Duty
July 30, 2013
The draft model contract includes a fiduciary duty provision we recommend access-to-justice plaintiffs bargain for. The fiduciary duty supplements the conflict of interest disclosures the contract requires. However corporate finance plaintiffs do not need such protection, and may not be as concerned about potential conflicts of interest. Moreover, access-to-justice plaintiffs may not be able to negotiate successfully for the fiduciary duty or even some of the conflict disclosures. An alternate...
July 30, 2013
The draft model contract includes a fiduciary duty provision we recommend access-to-justice plaintiffs bargain for. The fiduciary duty supplements the conflict of interest disclosures the contract requires. However corporate finance plaintiffs do not need such protection, and may not be as concerned about potential conflicts of interest. Moreover, access-to-justice plaintiffs may not be able to negotiate successfully for the fiduciary duty or even some of the conflict disclosures. An alternate...
The Impact of Chief Justice Jefferson’s State of the Judiciary Speech
July 30, 2013
In March, Texas Supreme Court Chief Justice Wallace B. Jefferson presented his State of the Judiciary speech before the 83rd Texas Legislature in Austin. Earlier this month, Disputing published the entire text of his speech in a series of three posts. (Part I, Part II, and Part III.) Since that time, a number of bills influenced by the Chief Justice’s State of the Judiciary speech were signed into law. Here is a summary: Basic Civil Legal Services – The Chief Justice encouraged...
July 30, 2013
In March, Texas Supreme Court Chief Justice Wallace B. Jefferson presented his State of the Judiciary speech before the 83rd Texas Legislature in Austin. Earlier this month, Disputing published the entire text of his speech in a series of three posts. (Part I, Part II, and Part III.) Since that time, a number of bills influenced by the Chief Justice’s State of the Judiciary speech were signed into law. Here is a summary: Basic Civil Legal Services – The Chief Justice encouraged...
Number of Civil Jury Trials Conducted in Texas Reaches a 40-Year Low
July 30, 2013
According to a recent report, the number of civil jury trials held each year across the State of Texas has declined to a 40-year...
July 30, 2013
According to a recent report, the number of civil jury trials held each year across the State of Texas has declined to a 40-year...
Negotiating the Reverse Auction in Class Action Cases
July 30, 2013
This story is for you if: You handle wage and hour class action cases; You run into the situation where there are multiple similar actions filed against the same defendant by different plaintiffs. Settling class action cases is typically a distributive negotiation where there is a fixed pie that gets divided up. While there is some room for creativity, for the most part it is a zero sum game in which a litigant’s gain (or loss) is balanced by the losses (or gains) of the other litigants....
July 30, 2013
This story is for you if: You handle wage and hour class action cases; You run into the situation where there are multiple similar actions filed against the same defendant by different plaintiffs. Settling class action cases is typically a distributive negotiation where there is a fixed pie that gets divided up. While there is some room for creativity, for the most part it is a zero sum game in which a litigant’s gain (or loss) is balanced by the losses (or gains) of the other litigants....
Small Business B-2-B Arbitration Part II.A: The Nature and Purpose of Arbitration
July 30, 2013
The long- and short-term success of a business is generally measured by the economic benefits it produces for its investors. Most business decisions require a business to accept risks of varying severity and frequency if the business is going to realize a meaningful return on investment. All else being equal, to increase the likelihood that those decisions will yield profits, the business must accurately assess all material risks, their corresponding benefits and the interplay between the two. The...
July 30, 2013
The long- and short-term success of a business is generally measured by the economic benefits it produces for its investors. Most business decisions require a business to accept risks of varying severity and frequency if the business is going to realize a meaningful return on investment. All else being equal, to increase the likelihood that those decisions will yield profits, the business must accurately assess all material risks, their corresponding benefits and the interplay between the two. The...
Contracting For Funding In “Access To Justice Cases” Versus “Corporate Finance Cases”
July 29, 2013
Last week Professors Sebok and Wendel posted a comment on contract and tort good faith norms in litigation funding. In it they expressed the view that they “do not think that the owner [of a claim, i.e. the plaintiff - MS] is in a position of vulnerability vis-a-vis the investor when negotiating the contract.” This gives us an opportunity to discuss one of our key takeaways from the debate that this website generated (some of which took place online but some of which has taken the form of private...
July 29, 2013
Last week Professors Sebok and Wendel posted a comment on contract and tort good faith norms in litigation funding. In it they expressed the view that they “do not think that the owner [of a claim, i.e. the plaintiff - MS] is in a position of vulnerability vis-a-vis the investor when negotiating the contract.” This gives us an opportunity to discuss one of our key takeaways from the debate that this website generated (some of which took place online but some of which has taken the form of private...
Eleventh Circuit Applies Sutter to Affirm Class Arbitration; Ninth Circuit Applies Concepcion To Preempt Montana Law
July 29, 2013
Within weeks of its issuance, SCOTUS’s Sutter decision is already making an impact on other cases. Both the Eleventh Circuit and the D.C. Court of Appeals citeSutter repeatedly in recent decisions that refuse to vacate arbitration awards. Of course, new decisions are not the only ones that reverberate: Concepcion, a 2011 decision, was just applied by the Ninth Circuit to preempt Montana case law on contracts of adhesion. Sutter In Southern Commc’n Servs., Inc. v. Thomas, __ F.3d...
July 29, 2013
Within weeks of its issuance, SCOTUS’s Sutter decision is already making an impact on other cases. Both the Eleventh Circuit and the D.C. Court of Appeals citeSutter repeatedly in recent decisions that refuse to vacate arbitration awards. Of course, new decisions are not the only ones that reverberate: Concepcion, a 2011 decision, was just applied by the Ninth Circuit to preempt Montana case law on contracts of adhesion. Sutter In Southern Commc’n Servs., Inc. v. Thomas, __ F.3d...
Arbitration Arithmetic
July 29, 2013
For years, Texas lawyers have tried every tactic imaginable to convince the 5th U.S. Circuit Court of Appeals that binding arbitration should not resolve their clients' fates, with little success. But John Crouch is adding a new argument to the debate: statistics.
July 29, 2013
For years, Texas lawyers have tried every tactic imaginable to convince the 5th U.S. Circuit Court of Appeals that binding arbitration should not resolve their clients' fates, with little success. But John Crouch is adding a new argument to the debate: statistics.
Conflict Resolution in Sport
July 29, 2013
A particularly insightful presentation on the use of mediation in sports was offered at last month’s World Mediation Forum in Prague. Ozlem Susler from La Trobe University, Melbourne, Australia (whom Forum co-President Colin Wall called “Oz from Oz”) moderated the presentation. She noted that sports is a substantial economic driver on a global scale. Soccer alone represents 43% of the global sports economic activity. Common disputes include trademark and intellectual property, broadcast...
July 29, 2013
A particularly insightful presentation on the use of mediation in sports was offered at last month’s World Mediation Forum in Prague. Ozlem Susler from La Trobe University, Melbourne, Australia (whom Forum co-President Colin Wall called “Oz from Oz”) moderated the presentation. She noted that sports is a substantial economic driver on a global scale. Soccer alone represents 43% of the global sports economic activity. Common disputes include trademark and intellectual property, broadcast...
FAA Pre-Emption of State Law Limits on Arbitration: The Ninth Circuit Grapples with Concepcion
July 29, 2013
In the Concepcion case in 2011 [AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740], five Justices of the Supreme Court of the United States agreed that the FAA pre-empts a rule of state law that makes an arbitration agreement unconscionable if the agreement prohibits class arbitration. The actual implications of Concepcion for class arbitration remain murky, as the Supreme Court’s other recent decisions relating to class arbitration have been context-specific. Thus in Stolt-Nielsen the Court’s...
July 29, 2013
In the Concepcion case in 2011 [AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740], five Justices of the Supreme Court of the United States agreed that the FAA pre-empts a rule of state law that makes an arbitration agreement unconscionable if the agreement prohibits class arbitration. The actual implications of Concepcion for class arbitration remain murky, as the Supreme Court’s other recent decisions relating to class arbitration have been context-specific. Thus in Stolt-Nielsen the Court’s...
