Thursday, September 29, 2016

Long-term Care Arbitration Attacked

This month, a decision by the Supreme Court of Florida and a rule by the federal agency that controls Medicaid and Medicare funding have dealt serious blows to the use of arbitration by long-term care facilities. The Centers for Medicare and Medicaid Services, an agency under Health and Human Services (HHS), essentially bars any nursing home or assisted living facility that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court. It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades. The nursing home industry has said that arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry has said, could drive up costs and force some homes to close. This was the case over a decade ago, when many excess verdicts were recorded in Florida, forcing players out of the state or out of business altogether. Lawyers who work with the elderly say that people are being admitted to nursing homes at one of the most stressful moments of their lives. Distraught and often desperate for a room, prospective residents do not fully grasp what they are signing. Many times, family members are involved in the admission process. The the Supreme Court of Florida said in a Miami case that a father who was a resident in a nursing home could not be bound by an arbitration requirement that his son had signed without the father’s agreement. However, reportedly, one appeals court refused to throw out an arbitration clause signed by a man who could not read or sign his name, reasoning that “illiteracy alone is not a sufficient basis for the invalidation of an arbitration agreement.” See FL decision in Mendez v. Hampton Court Nursing Center, LLC here-- Read more here: and

Sunday, September 18, 2016

Bruce Willis's Yippee Ki-Yay Arbitration Award

Last week, Bruce Willis asked a Superior Court judge to affirm an arbitrator's award and enter it as a formal judgment against Benaroya Pictures in the amount of $5.8 million. An arbitrator found the head of a movie production company thoroughly non-credible after his misrepresentation about a film that died a week into shooting. The award found that the company and its alter ego breached a contract to pay Willis $8 million to star in an action thriller called Wake. Willis was to play a sociopath with a violent history attempting to reconnect with his estranged family at his brother's wake. Reportedly, Willis typically earns $6 million to $8 million to lead a feature film and as much as $3 million for a one or two-day cameo role. The defendant was a producer in more than 20 films, including a 2011 crime thriller called Catch .44 that starred Willis. In the deal for Wake, an escrow agreement was created under which the film company was to place payment in an escrow account before principal photography began. The account holder was to pay Willis a portion of the fee each week over the planned seven-week shooting schedule. The producer failed to find full financing for the $25 million project and managed to put only $3 million into escrow by the time production was abandoned. By that point, Willis already spent two days in front of the camera. Willis took the dispute to arbitration, claiming breach of the escrow agreement. The arbitrator found the producer negligently misrepresented the film was fully funded, but denied remaining tort claims and counterclaims. The producer asked the Superior Court to vacate the award because the arbitrator had gone too far in adding him personally as a defendant, despite being a non-signatory. See more in stories here-- and and

Sunday, September 11, 2016

Uber Arbitration Agreements Upheld

Last week, the Ninth Circuit Court of Appeals in the case of Mohamed v. Uber Technologies, Inc. overturned a District Court’s ruling which originally found Uber’s arbitration agreements to be unenforceable. Last year, the District Court held Uber's arbitration agreements were unconscionable due to the inclusion of a waiver of claims brought under California’s Private Attorneys General Act (“PAGA”). The decision invalidated nearly 250,000 arbitration agreements between Uber and independent drivers, allowing the case against Uber to proceed as a class action in civil court. Uber appealed the decision, arguing that the District Court should have simply severed the PAGA waiver pursuant to a severability provision, rather than invalidating the entire agreement. The Court of Appeals agreed with Uber, ruling that the PAGA waivers be severed from the arbitration agreements and the agreements are otherwise enforceable. The Ninth Circuit dismissed the trial judge's reasons for declaring parts of the arbitration agreement unenforceable as artificial. The appeals panel found the lower court judge also ignored Ninth Circuit precedent, erroneously applying a California Supreme Court decision that itself cited a relevant Ninth Circuit decision. This lastest decision will allow Uber drivers to pursue their PAGA claims in court, but will allow Uber to compel individual arbitration on all other claims. Uber had agreed to a $100 million settlement, which the trial court rejected last month, calling it unfair and inadequate. See more on here-- and full decision--

Wednesday, August 31, 2016

Yosemite Names Settlement Stalls

An effort to settle a federal dispute between Yosemite National Park and its former concessions company, Delaware North, over trademarks has stalled before a costly and likely time-consuming court battle set next year. Despite mediation efforts between U.S. Justice Department attorneys and a government vendor, the sides reportedly resumed trial preparation. “'The parties do not believe that settlement is likely at this time,'” attorneys reported to the court, while adding that while they “'remain open to the possibility of mediation in this case...'" Myriad disagreements still separate the National Park Service from the concessions company. A new park concessions company takes over the lucrative contract this month. The departing company, a subsidiary of Delaware North, trademarked names of famous destinations like the Ahwahnee hotel (now known as Majestic Yosemite Hotel) and Curry Village cabins (now called Half Dome Village), during its tenure and now contends it must be paid for the intellectual property rights. Substantive differences over the lawsuit include the validity, dollar value and future of the new trademarks. The company’s sealed appraisal pegs the value of the trademarks at $44 million, while the government values the names at only $1.6 million. Of course, the U.S. Justice Department maintains a private company in attempting to monetize a property right it never possessed. Unless the judge summarily resolves the case, the core Yosemite trademark dispute won’t be decided until a U.S. Court of Federal Claims trial occurs in mid-to-late 2017, at the earliest. The parties previously advised Chief Judge Patricia E. Campbell-Smith that they were working on a framework for finding a settlement and apparently made substantial progress toward an agreement on a mediation plan, but did not explain exactly what caused them to step back from mediation. The government wants to allow the current Yosemite concessionaire, a subsidiary Aramark, to join the lawsuit as a third party. Delaware North opposes this move. Ultimately, the Justice Department argues, it could be the Aramark firm that’s liable for paying for any trademarks. See more here-- and the court's order sealing the valuation report for trade secret reasons here--

Thursday, August 11, 2016

Join me for 8/31 CLE Mediation Webinar!

Please join me later this month for our UWWM webinar series, presented in conjunction with the University of Florida Levin College of Law's Institute for Dispute Resolution, entitled "Why it is Almost Always Better to Mediate." I'll be joined by my colleague and moderator, Michelle Jernigan, as we explore the advantages of avoiding litigation through the use of mediation in this hour-long Webinar set for noon August 31, 2016. We'll endeavor to explain how non-judicial solutions can be achieved faster, at lower cost. Of course, confidentiality is a key component of the process, and one which can be misconstrued as uniquely part of lawyer-to-lawyer communications on settlement, which are merely excluded from evidence. We will also consider how a third party in a negotiation gains the advantage of insight into positions and information that might otherwise not be available to the lawyers talking alone. As mediators, we are also able to test assumptions about the value of a case and be frank in a way that may not be possible for another lawyer. The content of this Webinar is designed for Florida trial attorneys, paralegals and legal assistants. Our Florida mediation firm, Upchurch Watson White & Max, is happy to provide legal professional colleagues with free continuing legal education opportunities on a variety of ADR issues. Our accredited Mediation Webinars are presented live monthly and you may view them later via links on our website, if unable to attend via GoToWebinar at the time of broadcast. As always, attending our complimentary Mediation Webinar will entitle you to 1.0 hour continuing legal education (CLE) credit already approved through The Florida Bar. Mediators tuning in might also claim continuing mediation education (CME) credit for certified mediators by printing the registration for your records and reporting accordingly with the Dispute Resolution Center (DRC) upon renewal. Register here-- and read more information here--

Friday, August 5, 2016

Trump Confidentiality Arbitration

Can you have it both ways? A former Donald Trump campaign staffer is asking a court keep a dispute from proceeding in arbitration. The Trump Campaign is accusing Samuel Nunberg of breaching a confidentiality agreement by allegedly leaking information to Politico about a confrontation between top staffers. Nunberg also is charged with disparaging staffers in an article published by GQ magazine. Trump is seeking at least $10 million in a claim first made at the American Arbitration Association. Nunberg asserts that the Trump Campaign is attempting to chill his free speech rights, so he is looking to a New York Supreme Court judge to stop the arbitration. The campaign accused Nunberg of attempting not only to propel himself back into the spotlight, but to use the court as a vehicle to disclose confidential information violating the agreement. Nunberg states while it may be the philosophy of the Trump Campaign that all publicity is good publicity, his arguments over arbitration are not a stunt. Reportedly, each side is fighting over which of two agreements is operative-- a consulting agreement with the presidential exploratory committee or an earlier agreement with another Trump entity. It appears that the latter contains an arbitration clause while the former mandates disputes in New York court. At issue, is screaming between former Trump campaign manager Corey Lewandowski and campaign spokesperson Hope Hicks also reported in the NY Post's Page Six. Nunberg's lawyer maintains embarrassing shouting on a public street can hardly qualify as confidential and that a citizen of a free country should be protected against prior restraints of speech. Maybe not. See full story here--

Tuesday, August 2, 2016

Secret Water Wars Mediator

A Special Master whose ruling could influence an eventual U.S. Supreme Court decision to turn down Georgia’s water spigot has set a trial in his home state of Maine, where attorneys for Georgia and Florida agreed to begin arguments on Halloween. In the meantime, each side stated they continue to pursue settlement of the federal lawsuit Florida filed under the Supreme Court's original jurisdiction, seeking to push Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin including Lake Lanier, back to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Ralph I. Lancaster, Jr., the 86-year-old veteran Supreme Court appointee, has repeatedly advised the states to settle out of court rather than live with a costly decision he stresses neither will like. The states chose a nationally known mediator whose name, oddly enough, has been kept secret by Master Lancaster’s order. Recent status reports filed by the attorneys indicate meetings between the mediator and high level state officials were continuing before trial. The parties reportedly participated in multiple one-on-one telephonic discussions with the mediator; exchanged further confidential mediation proposals; and met face-to-face in Atlanta with the mediator. Except to hear progress reports, Master Lancaster wants no part of the mediation process. He denied Florida’s suggestion to talk with the mediator, saying “'I have no intention of invading (the process) or influencing or discussing with the mediator anything that's going on.'" See news item here-- and docket here--