arbitration

Law Review Article | The Litigation-Arbitration Dichotomy Meets the Class Action « Disputing

November 1, 2010 By Global EDD Group Leave a Comment

A forthcoming article entitled “The Litigation-Arbitration Dichotomy Meets the Class Action” by Vanderbilt Law Professor and Director of the Cecil D. Branstetter Litigation & Dispute Resolution Program Richard A. Nagareda makes some interesting and compelling arguments related to AT&T Mobility, LLC v. Concepcion, 09-893, a case set for argument before the U.S. Supreme Court on November 9th.

The article examines two cases from the Court’s October 2009 Term, Shady Grove Orthopedic Associates v. Allstate Insurance Co. and Stolt-Nielsen S.A. v. AnimalFeeds International Corp., and argues that “for all their salient differences, the Court’s accounts of class treatment under the Rules Enabling Act and the FAA evidence a deep, underlying convergence between litigation and arbitration doctrine.” Despite that Shady Grove and Stolt-Nielsen illustrate “divergent accounts of class treatment in litigation and arbitration,” their juxtaposition “serves to highlight deep structural similarities between the Court’s treatment of federal and state authority in litigation and the Court’s now-extensive jurisprudence on arbitration.” From this juxtaposition, the author concludes that the “critical precedent that guides the disposition of Concepcion is not Stolt-Nielsen but, rather, Shady Grove.”

via Law Review Article | The Litigation-Arbitration Dichotomy Meets the Class Action « Disputing.

Filed Under: From The News Tagged With: arbitration, litigation arbitration, review, stolt nielsen

Shearman plans a radical strategy rethink to boost litigation revenue | Features | The Lawyer

October 11, 2010 By Global EDD Group Leave a Comment

Shearman & Sterling is aiming to increase its global litigation revenues significantly over the next few years in what amounts to an admission that its dispute resolution capabilities are currently underweight.

Shearman has one of the world’s highest-profile litigation and arbitration practices, and is particularly well known for current hot areas such as Foreign Corrupt Practices Act (FCPA) advice. Yet the total litigation revenue as a proportion of the firm’s overall fee income lags behind that of many of its competitors.

New York-based securities litigation partner Herb Washer says this is an area Shearman is now looking to address.

“Our goal is to grow litigation significantly over the next five years until it is at least a third of total revenue,” says Washer.

In a radical overhaul of Shearman’s strategy, the firm’s current level of litigation revenue, approximately just over 20 per cent of the fee income, is expected to mushroom.

via Shearman plans a radical strategy rethink to boost litigation revenue | Features | The Lawyer.

Filed Under: From The News Tagged With: arbitration, dispute, firm, litigation partner, Resolution, securities litigation, Shearman, Strategy

United States, Litigation, Mediation & Arbitration, ‘Victor Stanley II’: Judge Grimm Synthesizes ESI Preservation Law and Issues Prison Sentence for Spoliation – Morgan Lewis – 24/09/2010, Disclosure & Electronic Discovery , IT & Telecoms, Information Security & Risk Management

September 29, 2010 By Global EDD Group Leave a Comment

On September 9, Magistrate Judge Paul W. Grimm rendered the sequel to his landmark Victor Stanley decision.1 His opinion in Victor Stanley, Inc. v. Creative Pipe, Inc. (Victor Stanley II)2 provides a detailed and insightful synthesis of the current state of spoliation law as it concerns electronically stored information (ESI).

The core allegations in the underlying case involved claims that Creative Pipe, Inc. (CPI) principal Mark Pappas (Pappas) and others repeatedly accessed Victor Stanley, Inc.’s (VSI’s) website under a fictitious name and downloaded VSI design drawings, which CPI then presented as its own in bids against VSI. 3

In “the single most egregious example of spoliation” that he has encountered, Judge Grimm details Pappas’s three-year history of “engag[ing] in a cat and mouse game to hide harmful ESI from production during discovery.” In addition to cataloging Pappas’s multiple unsuccessful attempts to delete ESI (causing delay but no data loss),4 Judge Grimm identified eight discrete ways in which Pappas “willfully and permanently destroyed evidence related to the lawsuit.” These included failing to implement a litigation hold; deleting ESI soon after VSI filed suit; failing to preserve an external hard drive, files, and emails following receipt of VSI’s preservation demand; failure to preserve ESI when replacing CPI’s server; and deleting ESI and using programs to erase files after several courtissued preservation orders.

Judge Grimm examined in great detail the technical and other measures5 used by Pappas to obfuscate and destroy evidence. Based on the evidence of Pappas’s “willful, bad faith conduct” (and noting the defense counsel’s partial concession of prejudice and acquiescence in default judgment on one claim), the court presumed the relevance of the destroyed ESI, as well as prejudice to the plaintiff.

via United States, Litigation, Mediation & Arbitration, ‘Victor Stanley II’: Judge Grimm Synthesizes ESI Preservation Law and Issues Prison Sentence for Spoliation – Morgan Lewis – 24/09/2010, Disclosure & Electronic Discovery , IT & Telecoms, Information Security & Risk Management.

Filed Under: From The News Tagged With: arbitration, cat and mouse game, creative pipe inc, discovery, evidence, Inc, magistrate judge, mediation arbitration, security risk management

Is International Arbitration to Blame for the Sharp Decrease in Federal Jury Trials? Yes, Partly. : International Business Law Advisor

September 29, 2010 By Global EDD Group Leave a Comment

The statistics cited by the NLJ show a steady decrease in the number of cases going to trial over five decades. While a 10% decrease over the span of nearly 50 years may not seem remarkable, does that mean in the next 50 years federal court trials will completely disappear? Of course not, but the trend does show a dip below one percent occurring in the near future.

What’s going on? Here are what two federal judges had to say about the phenomenon at a recent Federal Bar Association panel:

Judge William Young of the District of Massachusetts says the fault lies partly with federal judges themselves. Alternatively, Judge Brock Hornby of the District of Maine states that “outside forces, not judges,” are causing the decline. “Whether we care or not, I don’t think there’s much we judges or anyone else can do about it,” said Hornby. “Let’s face it, times change.”

via Is International Arbitration to Blame for the Sharp Decrease in Federal Jury Trials? Yes, Partly. : International Business Law Advisor.

Filed Under: From The News Tagged With: arbitration, Blame, Business, international arbitration, international business law, NLJ, number

jiplp: IP, civil procedure and arbitration in Germany

September 20, 2010 By Global EDD Group Leave a Comment

As a change from the publication of Current Intelligence pieces and editorials, here’s a recent JIPLP book review:

Intellectual Property Law in Germany: Protection, Enforcement and Dispute Resolution (2nd edn.), by Klett, Sonntag, and Wilske

Published by CH Beck, 2010, ISBN: 9783406545306, Hard cover, 628 pp. Price: €98.

Reviewed by Guido Westkamp (Queen Mary, University of London)

There is very little literature on German IP law in English. This book promises, according to the publisher, to close that gap, having predominantly a practitioner audience in mind. The book covers, by way of an introduction, all aspects of German IP law. In addition to the salient categories (trade marks, designs, copyright and neighbouring rights, patents and utility models, plant varieties), specific emphasis is placed on enforcement, including the recent changes brought about by European legislation in that area. In addition, the editors provide basic information concerning practical enforcement by way of both judicial proceedings, including interim injunctions, and arbitration and mediation. Much of the text consists of a translation of each relevant German IP statute into English, complemented by a brilliant glossary. This is welcome and doubtless reflects a great deal of excellence and linguistic skill.

via jiplp: IP, civil procedure and arbitration in Germany.

Filed Under: From The News Tagged With: addition, arbitration, change, enforcement, queen mary university, queen mary university of london

Law.com – Long-Awaited Crime-Fraud Ruling Has Toyota Scrambling in 2 States

September 12, 2010 By Global EDD Group Leave a Comment

Dimitrios Biller will be able to introduce documents in his arbitration against his former employer, Toyota Motor Sales, U.S.A., Inc., that the company had claimed were privileged. And if that news weren’t bad enough for the car manufacturer, a plaintiffs lawyer in Texas thinks the ruling may influence the judge in his case to allow the same documents into his contempt proceeding.

In a long-awaited ruling (pdf), the California arbitrator said on Thursday that Biller had made a prima facie showing that the documents, which ordinarily would not be available for him to use in discovery or during the arbitration hearing, qualify under the “crime-fraud” exception.

But the ruling does not mean that Toyota has lost — nor does it assure Biller a victory.

“The Arbitrator does not rule that a crime or a fraud has taken place,” retired federal judge Gary Taylor emphasized in his decision. “The ruling is simply that a prima facia showing has been made, so otherwise-privileged materials may be used in discovery and arbitration.”

The ruling does not mean that all of the documents Biller possesses, or even the more than 100 documents that Taylor reviewed, can be released to the public. Though plaintiffs lawyers involved in the many lawsuits Toyota faces have long sought access to them, Taylor wrote that his decision only allows Biller to use the documents in this context. Until he rules otherwise, Taylor added, “such materials will remain confidential within this arbitration, with no public disclosure.”

via Law.com – Long-Awaited Crime-Fraud Ruling Has Toyota Scrambling in 2 States.

Filed Under: From The News Tagged With: arbitration, com, crime, Decision, fraud, public disclosure, toyota motor sales

Has Arbitration Become More Burdensome than Litigation? – Law Blog – WSJ

September 1, 2010 By Global EDD Group Leave a Comment

Arbitration was once known as a faster, cheaper, better way to settle disputes.

But has the process become as bogged down as conventional litigation?

Possibly, writes Gina Passarella in the Philadelphia Legal Intelligencer on Wednesday. Writes Passarella: “litigators are starting to find the quicker, cheaper, more private aspects of arbitration have turned into lengthy, expensive and often public quasi-trials.”

As a result, an increasing number of attorneys are advising clients either to draft narrowly tailored arbitration clauses or to simply take their chances in court.

In the old days, Cozen O’Connor litigator Philip G. Kircher told Passarella, arbitration used to mean a six-month process “from cradle to grave.” But as arbitration became more popular, the arbitrators became more sophisticated, which resulted in parties asking more of those arbitrators in terms of complex discovery.

As a result, Kircher now more often advises his clients to create clauses in their contracts that agree to have a nonjury trial in the event of a dispute or at least agree on a certain jurisdiction, preferably in federal court.

via Has Arbitration Become More Burdensome than Litigation? – Law Blog – WSJ.

Filed Under: From The News Tagged With: arbitration, arbitration clauses, cozen o connor, Legal, result

Litigation: Avoiding the Arbitration Trap | Inside Counsel

August 31, 2010 By Global EDD Group Leave a Comment

Courts, bar associations, alternative dispute resolution organizations and private attorneys who serve as arbitrators all frequently laud the benefits of contractual arbitration. Obviously, each has his own financial or institutional bias for encouraging alternative dispute resolutions (ADR); therefore, they frequently describe arbitration as less costly, more efficient and ideally suited for a prompt resolution of disputes with guaranteed finality—a preferable alternative to formal litigation. Unless the contractual arbitration clause is drafted clearly and thoughtfully, however, the risks of arbitration for most corporate clients outweigh the rewards.

I offer no statistical proof for the following hypothesis, only anecdotal experience from more than 20 years of practicing in complex civil litigation in state and federal court systems and in all types of arbitration proceedings: Arbitrations are almost invariably more expensive for parties; less certain and far more contentious than judge-supervised litigation; and, of course, the results are almost never reviewable. Rules (to the extent that any are actually intended to apply) are often flouted, delays are the norm, arbitrator and ADR-facilitator billing is virtually unreviewable, and the results are unpredictable and often based on erroneous and uncorrectable interpretations of law and fact.

via Litigation: Avoiding the Arbitration Trap.

Filed Under: From The News Tagged With: arbitration, arbitration clause, arbitration proceedings, dispute, State

Sharjah International Commercial Arbitration Centre completes third phase of training program for Sharjah arbitrators | Al Bawaba

August 31, 2010 By Global EDD Group Leave a Comment

The Sharjah International Commercial Arbitration Centre (SICAC), a dispute resolution body operating under the Sharjah Chamber of Commerce and Industry (SCCI), has recently announced completion of the third phase of its integrated training program. The training, which was held in partnership with the Emirates International Law Centre, covered a series of workshops and lectures aimed at improving the arbitration and dispute handling skills of Sharjah based arbitrators. The program is part of SICAC’s continued commitment to help reduce and resolve labor and commercial arbitration issues in the emirate while also helping in the efforts to package Sharjah as a safe and attractive investment destination in the Middle East region.

via Sharjah International Commercial Arbitration Centre completes third phase of training program for Sharjah arbitrators | Al Bawaba.

Filed Under: From The News Tagged With: arbitration, body, Commercial, dispute, international commercial arbitration

United States, Litigation, Mediation & Arbitration, E-Discovery Duties and the Range of Sanctions for Failures to Comply with Them – Stonefield Josephson, Inc. – 29/07/2010 18:07:49, Disclosure & Electronic Discovery , IT & Telecoms, Information Security & Risk Management

August 1, 2010 By Global EDD Group Leave a Comment

Why is it that every litigator must become conversant with the language and intricacies of electronically stored information (ESI)? And why is it that they should feel highly motivated to do so in a non-negligent manner? This article addresses these questions.

Attorneys know, of course, that the discovery of potentially relevant evidence is a standard part of every lawsuit. But what is new is that, within the last five years, it has been recognized that ESI comprises most of all potentially relevant evidence. It has been noted that even the smallest fender-benders can involve ESI; for example, if the driver was texting just before the crash. In such a case, the amount of ESI might be relatively small, but then again, the existence and timing of the texting might be critical….

via United States, Litigation, Mediation & Arbitration, E-Discovery Duties and the Range of Sanctions for Failures to Comply with Them – Stonefield Josephson, Inc. – 29/07/2010 18:07:49, Disclosure & Electronic Discovery , IT & Telecoms, Information Security & Risk Management.

Filed Under: From The News Tagged With: arbitration, discovery, electronic discovery, mediation arbitration, range, security risk management