Saturday, March 31, 2012

Baseball Mediation: Cuomo as Mets-Madoff Mediator

While his son, Andrew, celebrates obtaining a NY budget with time to spare, Mario Cuomo is coming off a victory of sorts of his own-- having successfully mediated the controversy with the Madoff trustee in time for baseball season. Originally appointed as mediator in the bankruptcy case seeking more than a billion dollars from the franchise, Cuomo got the Mets owners to pay $162 million in fictitious profits, which could be offset by their claims as victims of the massive fraud. Judge Rakoff acknowledged Cuomo's role in mediating the settlement before trial and attorneys involved said it couldn't have been done without Cuomo's help. Cuomo, now 79, still serves as of counsel for a major law firm and is listed on a register of mediators for the federal court. The former politician said he brings the negotiating skills he honed as NY governor to the task. "A mediator makes sure the process is going forward," Cuomo said. "He meets. He cajoles. He argues." See articles on the case Picard v. Katz et al., U.S. District Court, SDNY, No. 11-03605 and

Wednesday, March 21, 2012

"Imported from Detroit" Mediation

In a countersuit of sorts stemming from clothing company Pure Detroit's use of "Imported from Detroit," the T-shirt maker in Michigan sued Chrysler, claiming that Chrysler's campaign amounts to false advertising since the featured vehicles are built elsewhere. U.S. Magistrate Judge Hluchaniuk has given the parties until April 3rd to report on whether a mediation session is successful. Apparently, the Chrysler 200, 300 and Town & Country aren't built in Detroit. The automaker sued the T-shirt company last year over its use of the phrase first used to promote Chrysler 200 during Super Bowl in an ad featuring Eminem. Chrysler has a website to sell clothing and other products with the "Imported From Detroit" logo and that merchandise isn't being made in Detroit, either. Chrysler says it donated proceeds of its sales of the merchandise to several Detroit charities. U.S. District Judge Tarnow previously refused to grant a preliminary injunction blocking the sale of the shirts by Pure Detroit. Often the outcome of early motions for injunctive relief can prompt mediation. It seems likely this case will go away, given the lack of serious justiciable issues. See story here-

Thursday, March 8, 2012

Arbitration under fire on NPR

According to recent news reports and The Diane Rehm Show today, an ever growing number of companies are including 'forced' or mandatory arbitration clauses in their contracts. What consumers and job seekers give up when they sign these contracts is their right to sue. Her guests included Professor Morrison, of GW Law School, who cited Kaiser's California health care plan arbitration that is working well. (But when asked by Ms. Rehm, he didn't know whether his own contract with the school includes and arbitration clause). Andrew Pincus, who represented AT&T in the Concepcion case before the Supreme Court, a former Assistant to the Solicitor General in the United States Department of Justice, who prevailed. The Court upheld the clause in that case on federal preemption grounds. Mr. Pincus felt the small claims represented by the plaintiff's class provided an incentive to utilize the process in bringing legitimate litigation. Richard Naimark, SVP of the American Arbitration Association, defended the process which he said has been growing the past dozen years. AAA's neutrals are independent third parties not beholden to anyone according to Mr. Naimark and have existed since the Federal Arbitration Act was passed in 1925. The process has evolved into consumer and employment rules which have differing fee structures, with businesses paying most fees. He argues arbitration is cheaper and easier than access the courts. AAA is taking a neutral position on the issue of mandatory clauses and primarily focuses on consensual arbitration. He maintains a common-sense explanation is all that is required on forms to get before an arbitrator. Christine Hines, a consumer and civil justice advocate at Public Citizen's Congress Watch wishes people to understand access to the courts. She seeks restoring rights of choice to the consumer, who unknowingly gave up their rights, when a dispute arises. She argues there is no transparency and that no public knowledge of corporate misconduct is bad for consumers. She is also worried about repeat business for private arbitrators favoring the corporation. However, arbitrators are required to disclose factors affecting neutrality according to AAA. Ms. Rehm said the process feels constricting and that transparency is lacking with regard to achieving justice which is not true in the courts. Mr. Naimark said courts are under budget stresses and are increasingly difficult for average people to navigate such that justice is best served through arbitration. Finally, though unlikely to pass, the guests discussed the introduction of the Arbitration Fairness Act last year as S. 987 and H.R. 1873 calling for arbitration to be agreed upon by both parties after the dispute arises and not just inserted in the fine print of often one-sided adhesion contracts. Listen here: and also read an NY Times editorial on this subject here:

Wednesday, March 7, 2012

Supreme Court of Florida Considers E-Discovery Rules

In a development that may lead to the use of more special magistrates and special masters deciding discovery disputes, this morning, the Supreme Court of Florida heard oral argument in case SC11-1542 on the amendments to the Florida Rules of Civil Procedure concerning E-Discovery. The proposed amendments add electronically stored information or ESI into existing rules and are mostly modeled on the federal rule changes implemented by Congress in 2006. Following a multi-year effort by the Civil Procedure Rules Subcommittee on E-Discovery that I formed in January 2006, these rules were presented to the Florida Bar Board of Governors and sent on to the court for comment and adoption. Justice Barbara Pariente, with her iPad prominently displayed on the bench, began to pepper Chair, Kevin Johnson (whom I tapped as my successor upon my terming off the Civil Rules standing committee) shortly after he began. She engaged in congratulating the seemingly unanimous approval by the members of the Bar in the run-up to making these rules official. Justice Pariente continued with questions regarding her experience as a litigator in producing documents in products cases. Mr. Johnson explained that the only difference from the federal rules is the lack of a mandatory meet and confer early in the case. However, there is an available category found in the state case management rules 1.200 and 1.201. Justice Quince was concerned over the format of production of the items requested by a litigant and that those decisions are left to the trial judge. Justice Perry was concerned about the party having the best expert to hide the ball with an inexperienced line judge. Doug Caldwell of the Rumberger firm appeared to applaud the effort, but on behalf of the Florida Defense Lawyers, did not feel the federal rules go far enough. He cited efforts in the federal rules advisory committee to remedy the inefficiencies experienced in that system. Mr. Caldwell echoed Henry Trawick’s comments filed about the burden on the producing party. His anecdote of a ‘mom and pop’ store with an iPhone was met with skepticism from Justice Pariente. Justice Polston pointed out the existing rules allow for trial judges to argue scope in 1.280. Retired Circuit Judge Ralph Artigliere, with whom I’ve taught at OSCA’s Florida Judicial College, commented on preservation and the existing case law for spoliation that developed out of products and malpractice cases. He added that Business Courts can make local rules more specific to manner of production. He also mentioned the change in culture reflecting a burden on lawyers to understand the evidence their clients may have and responsibility to the court, Education of the bench and bar was discussed and Justice Lewis went as far as talking about mandatory court education or bar CLE to be coordinated by the budget-less Civil Rules committee. Not a clue as to the timing of implementation of these rule amendments was given during the thirty-seven minute argument, though I liked Justice Pariente's emphasis on wide agreement of committee and bar to pass rules. Fingers crossed! See complete oral argument at: