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Arbitrator’s Creative IP Remedy Upheld Because It Furthered “General Aims of Agreement”
May 22, 2013
In a dispute over whether an arbitrator has authority to grant a video game developer and publisher a perpetual license in the intellectual property as a remedy for the developer’s fraud and breaches of contract, the Fifth Circuit found that the arbitrator’s creative award must be upheld under the Federal Arbitration Act, and set forth new guidance for courts confronting similar issues. Timegate Studios, Inc. v. Southpeak Interactive, LLC, __ F.3d __, 2013 WL 1437710 (5th Cir. April 9, 2013). The...
May 22, 2013
In a dispute over whether an arbitrator has authority to grant a video game developer and publisher a perpetual license in the intellectual property as a remedy for the developer’s fraud and breaches of contract, the Fifth Circuit found that the arbitrator’s creative award must be upheld under the Federal Arbitration Act, and set forth new guidance for courts confronting similar issues. Timegate Studios, Inc. v. Southpeak Interactive, LLC, __ F.3d __, 2013 WL 1437710 (5th Cir. April 9, 2013). The...
Justice Flunks Math
May 22, 2013
With the Amanda Knox trial re-engaged in Italy, an op-ed in today's New York Times, "Justice Flunks Math," underscores a regrettable point: Lawyers' (and judges') unfamiliarity with even basic probability theory can fuel "grave errors of law" (not to mention casts even more unflattering light onto the legal profession generally). The op-ed authors even manage to rough-up one of Lawrence Tribe's (Harvard) early articles where he laments the "overbearing impressiveness" of numbers used in the trial...
May 22, 2013
With the Amanda Knox trial re-engaged in Italy, an op-ed in today's New York Times, "Justice Flunks Math," underscores a regrettable point: Lawyers' (and judges') unfamiliarity with even basic probability theory can fuel "grave errors of law" (not to mention casts even more unflattering light onto the legal profession generally). The op-ed authors even manage to rough-up one of Lawrence Tribe's (Harvard) early articles where he laments the "overbearing impressiveness" of numbers used in the trial...
Dallas Appeals Court Holds Arbitral Award Must Stand in Construction Dispute
May 22, 2013
The Fifth District Court of Appeals in Dallas has affirmed a lower court’s decision to confirm an arbitral award in a construction dispute. In Goldman v. Buchanan, No. 05-12-00050-CV, (Tex. App.—Dallas Mar. 21, 2013, no. pet. h.), Beryl Goldman entered into a contract to design and build a new house with an architect, Russell Buchanan, and a builder, Lawrence Wallace. The parties’ agreement contained an arbitration provision. Once construction was completed, Goldman sued both Buchanan...
May 22, 2013
The Fifth District Court of Appeals in Dallas has affirmed a lower court’s decision to confirm an arbitral award in a construction dispute. In Goldman v. Buchanan, No. 05-12-00050-CV, (Tex. App.—Dallas Mar. 21, 2013, no. pet. h.), Beryl Goldman entered into a contract to design and build a new house with an architect, Russell Buchanan, and a builder, Lawrence Wallace. The parties’ agreement contained an arbitration provision. Once construction was completed, Goldman sued both Buchanan...
Three Things to Know About Mediating Licensing Disputes
May 22, 2013
The number of IP disputes resolved in mediation has continued to increase as attorneys make efforts to find speedy resolutions and cut litigation time and cost for their clients. Only a small percentage of costly patent infringement cases actually go to trial; approximately 90 percent of them are settled. Business people and their counsel recognize that mediation is a cost-effective, low-risk process with a remarkably high success rate when conducted by an experienced mediator. In mediation,...
May 22, 2013
The number of IP disputes resolved in mediation has continued to increase as attorneys make efforts to find speedy resolutions and cut litigation time and cost for their clients. Only a small percentage of costly patent infringement cases actually go to trial; approximately 90 percent of them are settled. Business people and their counsel recognize that mediation is a cost-effective, low-risk process with a remarkably high success rate when conducted by an experienced mediator. In mediation,...
Testing for Change in Procedural Standards, with Application to Bell Atlantic v. Twombly
May 21, 2013
Quantifying change in legal standards|in the sense of change in the propensity of judges to decide cases a certain way presents a vexing problem. In response to a change in the behavior of courts, plaintiff s and defendants will adjust their patterns of filing and settling cases. Models of the selection of disputes for litigation predict that when legal standards change, the rate at which plainti ffs prevail in litigation will not predictably change; if so, changes in legal standards cannot...
May 21, 2013
Quantifying change in legal standards|in the sense of change in the propensity of judges to decide cases a certain way presents a vexing problem. In response to a change in the behavior of courts, plaintiff s and defendants will adjust their patterns of filing and settling cases. Models of the selection of disputes for litigation predict that when legal standards change, the rate at which plainti ffs prevail in litigation will not predictably change; if so, changes in legal standards cannot...
Claims Gets Its Piece of the IT Pie
May 21, 2013
Claims has long waited its turn at the table for technology investment dollars, but recent trends suggest the fortunes of claims departments are improving. Organizations that take a strategic view of claims technology—and can articulate the benefits to those who hold the purse strings—are best positioned to get their fair share of the budget pie. As the "money out" side of the business, claims has long struggled to gain the budget attention of the "money in" side. "Claims has always been...
May 21, 2013
Claims has long waited its turn at the table for technology investment dollars, but recent trends suggest the fortunes of claims departments are improving. Organizations that take a strategic view of claims technology—and can articulate the benefits to those who hold the purse strings—are best positioned to get their fair share of the budget pie. As the "money out" side of the business, claims has long struggled to gain the budget attention of the "money in" side. "Claims has always been...
Arbitration and Access to Justice: Economic Analysis
May 21, 2013
Omri Ben-Shahar, Professor of Law at the University of Chicago Law School, has written a thoughtful paper entitled Arbitration and Access to Justice: Economic Analysis, University of Chicago Institute for Law & Economics Olin Research Paper No. 628 (January 2013). In his paper, Professor Ben-Shahar argues that mandatory arbitration clauses in contracts generally benefit most consumers. He also states that limiting access to arbitration in favor of a courtroom often provides an advantage...
May 21, 2013
Omri Ben-Shahar, Professor of Law at the University of Chicago Law School, has written a thoughtful paper entitled Arbitration and Access to Justice: Economic Analysis, University of Chicago Institute for Law & Economics Olin Research Paper No. 628 (January 2013). In his paper, Professor Ben-Shahar argues that mandatory arbitration clauses in contracts generally benefit most consumers. He also states that limiting access to arbitration in favor of a courtroom often provides an advantage...
Ninth Circuit Revives California Law That Allows Plaintiffs Seeking Injunctive Relief To Avoid Arbitration
May 21, 2013
More than one year ago, a three-judge panel of the Ninth Circuit determined that California case law, which precluded arbitration of claims asking for public injunctive relief, was preempted by the Federal Arbitration Act. Upon rehearing the case en banc, the Court backpedaled. Kilgore v. KeyBank Nat’l Assoc., __ F.3d __, 2013 WL 1458876 (9th Cir. April 11, 2013). Ten judges of that Circuit concluded that the California case law simply did not apply to the plaintiffs’ claims, so there...
May 21, 2013
More than one year ago, a three-judge panel of the Ninth Circuit determined that California case law, which precluded arbitration of claims asking for public injunctive relief, was preempted by the Federal Arbitration Act. Upon rehearing the case en banc, the Court backpedaled. Kilgore v. KeyBank Nat’l Assoc., __ F.3d __, 2013 WL 1458876 (9th Cir. April 11, 2013). Ten judges of that Circuit concluded that the California case law simply did not apply to the plaintiffs’ claims, so there...
The Present and Future of ADR
May 21, 2013
At the recent ABA Dispute Resolution Section conference in Chicago a panel that included myself, Debbie Masucci, past president...
May 21, 2013
At the recent ABA Dispute Resolution Section conference in Chicago a panel that included myself, Debbie Masucci, past president...
Discovery and Disclosure with Asymmetric Information and Endogenous Expenditure at Trial
May 20, 2013
We develop a model with asymmetric information, in which the uninformed party makes the offer. When the parties proceed to trial, their endogenous expenditures partially determine the outcome. The endogenous spending at trial can either strengthen or weaken the bargaining position of the uninformed party with the player types who settle. When the bargaining position is strengthened, some standard results on information transmission prior to trial may be overturned. The recipient of the offer with...
May 20, 2013
We develop a model with asymmetric information, in which the uninformed party makes the offer. When the parties proceed to trial, their endogenous expenditures partially determine the outcome. The endogenous spending at trial can either strengthen or weaken the bargaining position of the uninformed party with the player types who settle. When the bargaining position is strengthened, some standard results on information transmission prior to trial may be overturned. The recipient of the offer with...
