Thursday, March 9, 2017

Can Trump U. Settlement Objector Opt Out?

This week, a Florida lawyer and former Trump University student who paid $19,000 in tuition after being upsold to a "Gold Elite" program objected to a proposed $25 million settlement that would end lawsuits against President Trump’s real estate investing education seminars. The proposed settlement is expected to pay around fifty cents on the dollar for what students initially paid to attend the now-defunct program. The class action deal resolved claims that Trump University falsely promised that Donald Trump himself had hand-picked the instructors and that the program was an “accredited university.” Most class action settlements allow individual class members to opt out of the deal just prior to final approval. The facts of this case, in which class members had an opportunity to opt out before the two sides reached a settlement, are particularly unusual. Typically classes are certified at the time of settlement, so class members receive notice of their opt-out rights at the same time they are informed of settlement terms. There’s surprisingly little precedent to guide the court on this issue. Because of the objection filed, San Diego U.S. District Judge Gonzalo Curiel could delay the settlement or even call the entire deal into question. The plaintiff seeking to opt out maintains that by not offering a formal opportunity to opt out, the settlement violates her due process rights and the Federal Rules of Civil Procedure. Plaintiff's counsel even agreed to waive its litigation fees and costs in order to assure the judge overseeing the case that the firm’s only interest was getting the best possible deal for Trump University students. See more here-- and and and

Sunday, February 26, 2017

Did Mediation Disrupt Law?

Mediation was once viewed with the same suspicion found in the present disruption of industries and professions. After all, it was boldly called Alternative Dispute Resolution (ADR). Over the past couple of decades in Florida, we have vastly reduced the number of disputes going to trial, such that less than two percent of cases actually go that way. Because of skilled mediators and the embrace of the process by the bench and counsel, parties are participating in less formal court proceedings, having been encouraged to engage in early resolution of disputes in a cost effective manner. Trial courts remain available for the minority of legal matters unable to be resolved through facilitated negotiation. ADR processes offer litigants court-connected opportunities to resolve their disputes without judicial intervention. In Florida, this has resulted in one of the most comprehensive court-connected mediation programs in the country. The Florida Dispute Resolution Center (DRC) was created during the mid-'80s to provide assistance to the courts in developing ADR programs and to conduct education and research on ADR in general. Legislation some thirty years ago resulted in Chapter 44, Florida Statutes, Mediation Alternatives to Judicial Action. This law granted civil trial judges the statutory authority to refer cases to mediation or arbitration, subject to rules and procedures established by the Supreme Court of Florida. The Supreme Court duly established minimum standards and procedures for qualifications, certification, professional conduct and training for mediators and arbitrators who are appointed pursuant to this chapter. Since then, the statute has been revised several times and procedural rules, certification qualifications, ethical standards and continuing education requirements for mediators have been implemented. Currently, rules requiring mediators of filed cases in circuit and family court to be certified are being debated and were recommended by the ADR Section of The Florida Bar as outlined in a recent post on this blog. The ADR Rules & Policy Committee of the Supreme Court of Florida will next consider and likely recommend such changes. See more here-- and and and

Wednesday, February 15, 2017

Water Wars: Special Master Finds Against Florida

Florida and Georgia tried the decades-long Water Wars case between them before a U.S. Supreme Court (SCOTUS) assigned Special Master late last year. A ruling in the form of a report and recommendation to SCOTUS, finding Florida did not meet its burden, has now been issued following the filing of post-trial briefs of each state. Florida sought to limit Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. The dispute focused on the river basin which drains almost 20,000 square miles in western Georgia, eastern Alabama and the Florida Panhandle. The Chattahoochee and Flint rivers meet at the Georgia-Florida border to form the Apalachicola, which flows into the bay and the Gulf of Mexico beyond. Maine resident and Special Master, Ralph I. Lancaster, Jr., previously implored the states to settle out of court rather than live with a costly decision. Strangley, the states initially mediated the case with a mediator whose name was kept secret by an order. Except to hear progress reports, Master Lancaster wanted no part of the mediation process, but did command the parties to try a post-trial mediation. Florida still sought a cap on consumption that would alleviate past damage allegedly caused by Georgia. Despite the Special Master's efforts in getting the sides to meet in a good faith effort to reach a framework for settlement of this equitable apportionment proceeding, he was forced to issue a ruling. He even cited a precedent for controversies between states, quoting a 1942 case for the proposition that "The Supreme Court has 'often expressed' its 'preference' that, where possible, states settle their controversies by ‘mutual accommodation and agreement.’” Florida officials didn’t immediately comment, but the findings did appear to leave an opening to launch a separate legal complaint. The Special Master hinted throughout his Valentine's Day report to SCOTUS that Florida made a grievous tactical error by not including the U.S. Army Corps of Engineers as a party to the lawsuit. "Florida’s asserted harms are imaginary, self-inflicted, or inflicted by the operations of the United States Army Corps of Engineers... but in any event cannot be traced to Georgia’s water use." See article here-- and docket with report and recommendation to SCOTUS here--

Sunday, February 12, 2017

Law Schools TM Mediation

Competing law schools in Houston are going to mediation in a federal case in hopes of resolving a bitter trademark dispute over the new name of a 93-year-old law school. Interestingly, U.S. District Judge Keith Ellison of the Southern District of Texas set a judicial mediation before U.S. Magistrate Judge Dena Palermo at the end of the month. The University of Houston (UH) and South Texas College of Law Houston could not agree about withdrawing various trademark applications and registrations. They also could not agree about whether UH should be compensated for its expenses. The UH lawsuit claimed that South Texas had violated its trademark when it changed its name last year to Houston College of Law. The new branding, UH lawyers argued, confused prospective law students and even people voting on law school rankings, to the detriment of UH's law program. UH sought a temporary injunction, asking the judge to stop South Texas from using its new name while the case was being litigated. The injunction was granted because UH was likely to win the case before a jury in the court's view. Interestingly, the judge ordered South Texas to come up with a new name in the interim. South Texas officials decided to attach the word Houston to the end of the college's name rather than the beginning. UH apparently found this acceptable. The standard in trademark is always likelihood of confusion. Judge-directed mediation within federal district courts is sometimes seen around the country, though we don't find this in the Middle District of Florida, where private mediators are usually named in the Case Management Order (CMO) at the outset of a federal case. See story here--

Wednesday, February 8, 2017

NFL Concussion Settlement Registration Begins

Retired National Football League (NFL) players can now register for compensation under the league’s historic $1 billion settlement. Interestingly, a judicial status conference in which the enrollment was announced was held not in the courtroom, but in the National Constitution Center in Philadelphia. About 22,000 retirees are encouraged to get baseline neurological testing. The league expects more than 6,000 of them to eventually be diagnosed with dementia or Alzheimer's disease. Participants must register for the settlement by August 7th. The conference apparently began with opening remarks by U.S. District Judge Anita Brody, who presided over the settlement process. Brody was joined by lawyers for the players and the NFL. After stressing the registration deadline for all affected players is approaching soon, the league encouraged all class members to promptly register. The settlement provides payment for retired players diagnosed with amyotrophic lateral sclerosis, chronic traumatic encephalopathy (which is only diagnosed with an autopsy), Alzheimer’s disease, Parkinson’s disease and dementia. In addition to monetary compensation, the NFL has agreed to provide brain injury testing to players and provide payments to fund the education of concussion and sports-related brain injuries. No player will need to prove causation. The average award is expected to be about $190,000 for those suffering from Alzheimer's disease or moderate dementia. The awards do not cover depression or mood disorders. See full stories here-- and

Friday, January 27, 2017

FL Bar ADR Section Supports Mandatory Certification

Yesterday, the Executive Council of the ADR Section of The Florida Bar convened in Orlando at its winter meeting. Among the topics for discussion were proposed rules that will ultimately be considered by the ADR Rules & Policy Committee of The Supreme Court of Florida which asked for the section's input on the matter of mandatory certification for mediators in court cases. Two recommendations were made to ADR Rules & Policy that is likely to have its own language changes and submit for public comment before the Florida Supreme Court passes them. This effort was brought about after a survey of the ADR Section's members indicated the majority preferred using certified mediators and felt all people in Florida mediating cases for the courts should be required to follow the ethical rules. The rules address things like conflicts of interest, confidentiality, coercion, self-determination and other traditional hallmarks of the mediation process. The first proposal requires that professional standards would apply to non-certified mediators voluntarily selected or retained by the parties in the absence of a court order and applies to circuit and family cases. A second motion passed for requiring mandatory certification of mediators in filed cases retained or appointed by the court in the same divisions, with the exception of dependency. While these proposals are perhaps controversial in some circles, it was thought the ADR Rules & Policy Committee would act on this with or without the ADR Section's input. Therefore, the preference for rulemaking reflected by the section survey was formally expressed through these resolutions. Stay tuned for next steps. See court committee link here-- and section link here--

Sunday, January 15, 2017

Takata Deal Parties Ask for Special Master

Last week, the U.S. Attorney in Detroit announced Takata Corporation agreed to plead guilty to wire fraud and pay $1 billion in penalties stemming from the company’s fraudulent conduct related to sales of defective air bag inflators. The federal prosecutor said automotive suppliers who sell products that are supposed to protect consumers from injury or death must put safety ahead of profits. Under the terms of the agreement, which is subject to court approval, Takata pleaded guilty for falsifying testing data and reports that were provided to automakers. Takata will pay a criminal fine of $25 million and establish a $125 million restitution fund for individuals who suffered or will suffer personal injury caused by the malfunction of a Takata airbag inflator, and who have not already resolved their claims. In addition, Takata will establish an $850 million restitution fund for the benefit of automakers who received falsified testing data and reports or who have purchased airbag inflators from Takata containing phase-stabilized ammonium nitrate. The deal includes appointment of an independent monitor, who will report to the Justice Department and monitor Takata’s compliance with its legal and ethical obligations. The parties asked the federal judge to appoint mediator Kenneth Feinberg as a special master to distribute restitution payments. He handled restitution funds in the General Motors ignition switch and BP oil spill cases, among others. Payments to individuals must be made soon and automakers must be paid within five days of Takata's anticipated sale or merger. Takata is expected to be sold to another auto supplier or investor sometime this year. See more in stories here-- and and press release--