Thoughts On How We Litigate, Arbitrate, and Mediate Our Most Complex Problems
ArbitrationCross-Border DisputesLitigation

“Absolutely Incensed”: A Foreign Law Twist on Equitable Estoppel in Arbitration

0
by Andrew Flake A Ninth Circuit battle between two Indian incense makers over whether their case should be arbitrated has still not burned out. After one correction and remand from the U.S. Supreme Court, the Ninth Circuit considered this question: whether Indian law comes into play where two Indian parties, who signed a partnership and arbitration clause governed by Indian law, seek to bind a non-party to that agreement. In Setty v. Shrinivas Sugandhalaya (BNG) LLP (filed Jan. 20), an originally harmonious arrangement between two brothers to split the family incense business — with one fraternal business in Bangalore and…
READ MORE
Case ManagementLitigationTechnologyTrial

What We Can Learn from the First All-Virtual Patent Jury Trial

0
by Andrew Flake After a week-long patent infringement trial in federal district court in Seattle, a civil jury hit gaming company Valve Corporation with a $4 million verdict for patent infringement. The case involved design aspects of Valve’s Steam game controller. Not an unusual result, except that this jury was selected, heard the trial and deliberated, and rendered the verdict entirely virtually, a first in the patent arena. As it happens, the Western District of Washington, where the trial took place, has pioneered virtual jury trials using the ZoomGov.com platform and done so very successfully. From the docket in the…
READ MORE
MediationResolution

Mediation Principles for our National Conversation

Much of President Biden’s inaugural address sounded historically resonant American themes of unity across differences. As I watched, I thought about the work ahead for not only Congress, but all of us. In attempting to forge consensus around policy and legislative solutions–to move forward with actions to heal some of the social, economic, and health-related crises we’re confronting — a large part of our work is going to call less on traditional forensically-oriented political debate , and much more on the kind work we do as mediators. Consider how some of the principles that we apply as mediators can help…
READ MORE
ArbitrationBusinessCase Management

When Does Documents-Only Arbitration Make Sense?

An underutilized dispute resolution process in U.S. commercial disputes is an arbitration conducted only on the exhibits, without a final oral hearing. Such a documents-only arbitral process, much more common internationally, resembles a summary judgment process more than it does a traditional arbitration. It’s worth a thoughtful look, so let’s consider: What are the advantages of documents-only arbitration, when does it make sense to employ, and, if they are employing it, how can advocates use the process most successfully?1. Advantages of Documents-Only Arbitration: For the right dispute, the main advantages — and they are substantial compared even with a typical…
READ MORE
Arbitration

Repeat Player Bias in Arbitration: Snuffleupagus or Yeti?

The topic of arbitrator bias came up recently in two completely different settings — one, a presentation by a law professor to a group of lawyers, and one, in a conversation with a non-lawyer friend, a scientist. In both cases, the question posed was: Is there a tendency for arbitrators, knowing that certain parties and law firms are repeat players and thus more likely to reappoint them, to skew decisionmaking in a self-interested way? And the answer in both cases, for the law professor and my friend, was, “Well, yes, there must be some level of bias. If parties are…
READ MORE
LitigationTechnologyTrial

Federal Court Hearings and Chill? Applause for More Live Streaming

The federal courts’ policymaking body, the Judicial Conference of the United States, has just kicked off a pilot program in selected district courts to livestream the audio of certain court proceedings. Despite the concern expressed by some that a wider public audience will encourage grandstanding, I’m convinced more access means better advocacy. To understand why, we can consider Jarndynce v. Jarndyce, the fictional legal dispute from Bleak House, whose length is legendary. As Dickens memorably expresses, the lawyers simply drift in and out of the courtroom, going through procedural motions and arguing about inconsequentials, without any recollection of what began…
READ MORE
BusinessLitigationTechnologyTrialUncategorized

ROSS-Westlaw Copyright Feud: Approaches to Litigation Cost Management

What options does a smaller defendant have when a larger and better-funded competitor uses litigation as a means to exert financial pressure and drain resources? This scenario is one that legal AI company ROSS Intelligence, as a result of copyright litigation filed by Westlaw Publishing and its parent, Thompson Reuters, claims to find itself in. ROSS just announced that the costs of litigation initiated by Westlaw have forced it to shut down operations, depriving the public, in ROSS’s view, of a valuable legal research tool. In a complaint filed in May of this year and just argued on a motion…
READ MORE
MediationResolutionTechnology

Phoning It In: Telephonic Mediation in a Virtual World

A litigator friend of mine recently shared her frustration over being forced to mediate a case by phone. The mediation was being set up by a government agency, and the agency representative in question was not open to any alternatives, whether an in-person meeting or even online, using a video platform like Zoom or Microsoft Teams. Fearing constraints on her ability to advocate, my friend was inclined to write the process off in advance. I tried to be reassuring, asking some questions about her case. How complicated are the facts? How strained is the relationship between the parties and party…
READ MORE
MediationResolution

Uniform Mediation Act Still Trekking Through the States

The steadily rising costs of litigation, and the current backlog on civil dockets, have borne out what one of the most effective American trial lawyers of an earlier generation observed: that in litigation, “the nominal winner is often a real loser – in fees, expenses, and waste of time.” Correspondingly, over the past twenty years the U.S. mediation market has matured steadily, with the pandemic, and the widespread use of video technology in online dispute resolution (ODR), now galvanizing the process. So how do we continue this momentum, and move the use of mediation to its next level in frequency,…
READ MORE
Mediation

A Promising Future for the Singapore Convention and Global Mediation

I was talking with a colleague from Australian recently, a barrister and frequent mediator, about what the coming years will bring for international dispute resolution, and for mediation in particular. We agreed that in more jurisdictions across the world, mediation will continue to gain wider acceptance and to be more frequently employed by parties in private disputes — and for that matter, that it should also be used more in the government and legislative area to help tamp down and mitigate some of the severe conflicts that have emerged in our polarized era. On the commercial litigation front, a step…
READ MORE
LitigationTechnology

How COVID-Era Technology is Driving Down the Litigation Cost Curve

In order to move cases forward during the pandemic, we have accelerated technology deployment in litigation, setting up major new efficiencies for litigants. These technologies were there in some form prior to today. But widespread acceptance was missing: in a variety of litigation contexts, a bias existed in favor of in-person appearances. While that bias is still present, our recent forced experience with Zoom and other technologies – and the subsequent validation of their value – has gone a long way toward mitigating it. That is a big positive for litigation cost-control. Even after Covid-19 does not require the same…
READ MORE
LitigationTrial

The Power of Theme: Epic Games Takes Aim at Apple

The lawsuit by Epic Games against Apple, challenging Apple’s strict controls on developers and the App Store’s percentage take from game revenue, shows the power of theme and coordinated message. When I read the first news accounts of the filing, they all referenced Apple’s market power and control. In Epic’s messaging, Apple is portrayed as a market behemoth — which of course it is, from a revenue standpoint — but more than that, using its power to stifle innovation and exploit the developers who depend on the App Store. Apple, in other words, is just too big and isn’t playing…
READ MORE
ArbitrationBusinessCross-Border Disputes

Second Circuit Reaffirms Its View on Section 1782 and Private International Arbitration

Sharpening a split with sister circuits, the Second Circuit has now affirmed its position that private arbitral bodies are not “tribunals” under 28 U.S.C. § 1782. For the time being, then, if your dispute is in international arbitration administered by an entity like the ICC, or a regional arbitral commission, you are prevented from using Section 1782 to obtain testimony or documents located in New York or elsewhere in the Second Circuit. I suspect this will not be the case for very long: I’ve written before about the likelihood that this question reaches the Supreme Court, noting that two circuits…
READ MORE
ArbitrationResolution

Maintaining Confidentiality in Arbitration

We often hear that arbitration affords a level of confidentiality that courtroom proceedings do not. While that is true to an extent, it requires some qualification: It is the parties who must, by agreement or request to the tribunal, take responsibility for avoiding disclosure. The AAA’s Commercial Rules, for example, require that the arbitrator and the AAA, not the parties themselves, maintain the privacy of arbitration (R-25). Under the UNCITRAL Arbitration Rules (Article 28.3) frequently chosen for international arbitration, the tribunal is required to conduct the arbitration hearing in camera; the rules do not speak to party disclosures. And under…
READ MORE
TechnologyTrial

Virtual Patent Trial Underway in Southern District of New York

Pharma companies Ferring and Serenity began July 6 trying what should be a week-long patent case by remote video. After consultation with the court’s technician, and taking input from the parties on procedures, Chief Judge Colleen McMahon opted to utilize a secure Zoom-based video platform, instead of attempting to manage physical social distancing, to conduct the bench trial safely. In addition to attending to COVID-19 concerns, with a number of witnesses based in Europe, the approach is certainly one that saves costs. Here are some of Judge McMahon’s thoughtful comments on trial procedures, including managing exhibits with remote witnesses and…
READ MORE
Arbitration

Sour Chilean Grapes and Specific Performance of Contracts In International Arbitration

  A winery investment dispute gives the Eleventh Circuit a chance to validate District Court powers in confirming arbitral awards.   In the second of two cases considering Latin American arbitration arising under the Panama Convention, the Eleventh Circuit reminds us that arbitrators have the same flexibility as courts to order a party to perform.   The arbitration involved an investor in a Chilean wine company — a financial relationship that had obviously soured — who wanted to offload its shares under a put provision in its agreement with the winery’s owners. When one of them balked, the investor, EGI,…
READ MORE
Trial

How Will We Conduct Jury Trials In the Age of COVID-19?

At varying speeds, courts across the country are starting to reactivate trial calendars. This process is substantially easier for bench trials, and a number of them have already been conducted by video. The first one handled by Zoom, a five-week patent infringement trial in the Eastern District of Virginia, proceeded with few hitches. Both counsel and the court seems pleased with the process and did not observe any appreciable delay as a result of the format. I thought Judge Morgan’s comments were fascinating, in that he believed his credibility assessment during trial was actually helped, not hindered, by video. As…
READ MORE
Case ManagementLitigation

11th Circuit Weights in on “Administrative Feasibility” as a Class Certification Requirement

0
A frequently-debated question in the class action realm is the role in certification analysis of “administrative feasibility.” Must a plaintiff show, before a class is certified, that a manageable way to contact absent class members exists? In the Third Circuit, for example, the proposed class representative must establish feasibility separately, proving identifying class members will be “a manageable process that does not require much, if any, individual factual inquiry.” Carrera v. Bayer Corp.,727 F.3d 300, 307–08 (3d Cir. 2013) Looking to 11th Circuit precedent and the text of Rule 23, the 11th Circuit has ruled: it does not. The only…
READ MORE

Sign Up For Our Newsletter

New Blogs and Analysis in Your Inbox.

Menu