Toyota Seeks Settlements

This month, Toyota said it would begin negotiations to settle hundreds of pending federal and state lawsuits over the sudden acceleration of its vehicles. Lawyers suing Toyota claim unintended acceleration reports increased after Toyota began equipping vehicles with electronic throttle control via its ETCS-i system. Signals from a sensor detecting how far the gas pedal is pressed control the throttle. An Oklahoma jury recently found a Camry’s electronic throttle system was defective and that Toyota had acted with reckless disregard. Previously, Toyota won sudden-acceleration trials; this being the automaker’s first loss. Reportedly, this verdict likely caused Toyota to pursue settlements in its remaining cases. Negotiations could put an end to a lengthy process that hurt Toyota financially and affected its reputation for quality. Last summer, Toyota agreed to pay $1.6 billion to settle a class-action lawsuit brought by vehicle owners who suffered financial losses. Toyota still faces hundreds of personal injury and wrongful death suits, most of which are consolidated in California. The decision to pursue a comprehensive settlement process will suspend that litigation. Lawyers representing plaintiffs in those cases felt talks would save both sides time and legal costs. Over the past few years, Toyota recalled over ten million Toyota and Lexus vehicles for problems including floor mats that caused the accelerator to become stuck. U.S. District Judge James Selna of Santa Ana issued an order halting the lawsuits. A hearing has been set next month in case 8:10-ml-02151, United States District Court for the Central District of California. See stories here-- http://nyti.ms/1h46mJ4 and http://bloom.bg/KbMiqp

BP Settlement Causation Arguments Rejected

This week, New Orleans U.S. District Judge Carl Barbier rejected BP's argument that a multibillion-dollar settlement over the company's massive 2010 Gulf oil spill shouldn't compensate businesses if they can't directly trace their losses to the spill. Recently, the U.S. Circuit Court of Appeals for the Fifth Circuit ruled that the trial judge must reconsider BP's arguments for injunctive relief that 2012 settlement proceeds only compensate businesses whose economic losses are directly traced to the 2010 Gulf of Mexico oil spill, holding that the lower court erred last month in refusing to consider causation arguments in interpreting the consent decree. Perhaps because BP has previously received favorable rulings on appeal, it attacked the multibillion-dollar settlement by disputing payouts to businesses. BP argued court settlement administrators wrongly considered bogus or inflated claims. Plaintiffs' lawyers countered that BP undervalued claims and underestimated the number of claimants qualifying for payments. BP and the plaintiffs' lawyers had previously agreed on objective and specific methods of proving losses were caused by the spill such that losses for businesses located from Louisiana to Florida were presumed to be caused by the spill under the settlement's terms. The lower court felt it unreasonable to expect claimants to prove losses were directly traced to the spill. The appellate court directed the trial judge to allow businesses who can trace their losses to the spill to continue receiving payments. Judge Barbier said in his ruling on remand that the settlement was designed to avoid the delays that would result from a claim-by claim analysis of whether each claim can be traced to the spill. BP attorneys complained dozens of claimants whose losses were caused by something other than the spill have received millions. Judge Barbier sided with plaintiffs' lawyers that BP can't make those arguments because the company took a contradictory position on the same issue when it urged the court last year to approve the settlement. Stay tuned; another trip to the 5th Circuit may be coming. See story here-- http://abcn.ws/1a8NuRf and case no. 2:10-md-02179-CJB; MDL 2179, U.S. District Court, Eastern District of Louisiana.

Mediated Settlement Agreement Enforced Despite Second Thoughts

When a settlement is reached, parties typically sign a binding settlement agreement before they leave-- often to prevent buyer's remorse. At the conclusion of a long mediation, litigants are sometimes physically and emotionally exhausted. Recently in Florida, a trial court let one party out of a mediated settlement agreement after she claimed coercion. In that case, the mediator allegedly denied her request to take the agreement home over the weekend. The lower court judge believed a request for additional time to review the document was warranted, due to fatigue from the extensive negotiation. After reflecting upon the settlement terms, the litigant apparently requested the agreement be rescinded, instructing her attorney to file a Motion to Vacate. When her attorney suggested he could not file such a motion, she then filed pro se. The trial court erroneously concluded she did not freely, knowingly and intelligently enter into the agreement. The district court of appeal, upon reversing, found the record devoid of evidence that the agreement was signed as a result of fraud, misrepresentation, coercion, or overreaching, and ordered the settlement agreement to be enforced. To void the agreement, the presence of fraud, misrepresentation, coercion, or overreaching is needed. Fatigue, distress, and second thoughts are not enough. The court reasoned though appellee may have been fatigued and distressed-- and later suffered second thoughts-- without more, these facts do not provide grounds for setting aside an otherwise valid agreement. See First DCA Opinion Case No. 1D13-1546 http://opinions.1dca.org/written/opinions2013/12-10-2013/13-1546.pdf

Hyundai Drops Arbitration Clause

A policy that required some warranty disputes to be settled through binding arbitration, unless owners notified Hyundai within 90 days of purchasing the vehicle of their decision to opt-out of the arrangement, was recently dropped. Following an article about the arbitration requirement that appeared in The New York Times’s Automobiles section, Hyundai issued a statement saying it would change the policy. Hyundai said it didn't want the public to be misled that it would not stand behind "America’s best warranty.” Hyundai claims it has only used arbitration ten times since 2006. Under the earlier policy, failing to opt-out may have disqualified owners from joining class actions or collecting refunds if their vehicle was determined to be a lemon. Formerly binding arbitration was administered by the American Arbitration Association with owners paying a part of the cost and decisions not subject to appeal. Owners choosing to opt-out could seek resolution elsewhere, including court. Reportedly, notice directly from the automaker printed in the owner’s manual is unusual, according to consumer advocates. Hyundai previously maintained giving owners 90 days to opt-out of arbitration was fair notice included in the vehicle warranty brochure. Owners could still file lemon law, product liability or personal injury lawsuits. See article here-- http://nyti.ms/18wm7U3

BP Settlement Challenged

The U.S. Circuit Court of Appeals for the Fifth Circuit ruled this week that a trial judge must reconsider BP's arguments for injunctive relief that 2012 settlement proceeds only compensate businesses whose economic losses are directly traced to the 2010 Gulf of Mexico oil spill, holding that the lower court erred last month in refusing to consider causation arguments in interpreting the consent decree. BP attacked its multibillion-dollar settlement and has previously received favorable rulings on appeal regarding disputes over payouts to businesses. BP argued court settlement administrators wrongly considered bogus or inflated claims by businesses. Plaintiffs' lawyers countered that BP undervalued claims and underestimated the number of claimants qualifying for payments. BP and the plaintiffs' lawyers had agreed on objective and specific methods of proving that losses were caused by the spill such that losses for businesses located in certain areas from Louisiana to Florida were presumed to be caused by the spill under the settlement's terms. The U.S. District judge presiding over the case felt it unreasonable to expect claimants to prove losses were directly traced to the spill, and that doing so would defeat the purpose of a class settlement. Citing lack of some colorable claims, the appellate court directed the trial judge to craft an order allowing businesses who can trace their losses to the spill to continue receiving payments, but ensuring those who cannot trace their losses to the spill don't receive compensation. BP attorneys complained dozens of claimants whose losses were caused by something other than the spill have received millions. The trial judge already expressed disappointment that BP accused the claims administrator of disregarding the settlement terms and felt that BP was attempting to rewrite unambiguous terms of the Settlement Agreement. However, the appeals court stated that by allowing recovery from the settlement fund by those who have no case and cannot state a claim, the court acts "ultra vires." Meanwhile, LawFinance Group, a provider of capital for litigation, announced the availability of the $50 million in funding due to financing demand that allows smaller plaintiffs’ firms to stay afloat while they litigate with BP over disputed claims. See stories here-- http://abcn.ws/18BY60h and http://buswk.co/1bfEs8J and opinion here-- http://www.ca5.uscourts.gov/opinions/pub/13/13-30315-CV0.pdf

State's Confirdential Arbitration Program Violates First Amendment

The United States Court of Appeals for the Third Circuit ended Delaware’s confidential arbitration arbitration program, upholding a trial court decision that it violated the First Amendment. The program, established in 2009, was limited to business disputes of $1 million or more involving Delaware companies. Delaware is well known as a friendly state of incorporation for public companies and its Chancery Court specializes in business disputes. The state Legislature wanted cost effective means of resolving these disputes in light of growing private confidential arbitration with streamlined proceedings, like AAA and JAMS. Interestingly, the disputes were arbitrated by Delaware’s own judges, knowledgeable in adjudicating corporate law matters. Deliberations and resolution were confidential. Delaware charged $6,000 a day with a $12,000 filing fee, generating revenue for the state. Those outside of Delaware contended the rules moved important business disputes into private, perhaps to the detriment of shareholders and other stakeholders in the corporation. However, reportedly, this experiment also had strong proponents. They argued that judges regularly participate in mediation. Moreover, parties could agree to arbitrate their disputes without these judges. Delaware's need to compete, they argued, made arbitration a natural extension of its corporate law expertise. The Delaware Coalition for Open Government sued in federal court, claiming that the arbitration statute was unconstitutional. A lower court struck down the statute in 2012 holding that these arbitration cases were essentially confidential civil trials since the judges, place and proceedings were the same. The appellate court applied an experience and logic test, finding that these proceedings had traditionally been open to the public, and should remain open, even if called arbitration. The lone dissenter in a 2-1 decision stated that the Court of Chancery "may not be able to compete with the new arbitration systems being set up in other states and countries.” Apparently, less than a dozen cases were actually decided under the program. See stories here-- http://nyti.ms/I8sfs9 and http://on.wsj.com/163Rl3r

DOJ Settles Airline Antitrust

The U.S. Justice Department agreed to settle with American Airlines and US Airways, ending the government’s antitrust lawsuit trying to block a merger creating the world's largest airline. The case was headed to trial this month in federal court and the parties previously agreed to a mediator suggested by the court. The Justice Department maintained the planned merger would create a monopoly, thereby reducing competition and leading to higher fares. The settlement calls for certain slots to be divested in major cities, including Boston, New York, Chicago, Dallas, Miami and Los Angeles. U.S. District Judge Kollar-Kotelly, who presided over the Microsoft antitrust case, is overseeing the litigation and must still approve the settlement. American, which has been in bankruptcy, will now exit court protection by merging with US Airways. The companies reportedly expect the merger to generate more than $1 billion in annual net synergies beginning in 2015. The merger will likely close in December, subject to the approval of the settlement by the U.S. Bankruptcy Court. See story here-- http://fxn.ws/1gGczKR

AAA Appellate Arbitration Rules

The American Arbitration Association (AAA) has introduced a new set of Optional Appellate Arbitration Rules effective this month. These new rules provide parties with a streamlined, standardized, appellate arbitration procedure, allowing for review of arbitral awards. AAA maintains this appellate rubric remains consistent with the objective of an expedited, cost effective and just arbitration process. Courts have previously used only narrowly defined statutory grounds to set aside arbitration awards. This process now provides for an appeal within the arbitration. An appellate arbitral panel applies a standard of review more expansive than that allowed by existing federal and state law in vacating awards. Though optional, these rules were developed for large, complex cases where parties value the ability to appeal. Parties may use these rules with agreement by contract or stipulation. Appeals are only permitted on the grounds that the underlying award is based on errors of law that are material, prejudicial or is made on clearly erroneous determinations of fact. Generally, AAA appeals will be determined upon the written documents submitted by the parties, with no oral argument. As efficiency is desired, the Optional Appellate Arbitration Rules anticipate a three month process to complete resolution. At present, the panels consist of former federal and state judges and neutrals with strong appellate backgrounds. Interestingly, the parties may apply the rules whether or not the underlying award was conducted pursuant to AAA or International Centre for Dispute Resolution (ICDR) rules. See rules here-- http://bit.ly/1cDPGXy

Airline Antitrust Mediation

The U.S. Justice Department agreed to go to mediation along with American Airlines and US Airways to try and resolve the government’s lawsuit seeking to block the proposed merger of the two airlines. The case is headed to trial this month in federal court. The parties agreed to a mediator “suggested by the court,” which is a bit unusual. The Justice Department contends the planned merger would create the world’s largest airline, thereby reducing competition and leading to higher fares. U.S. District Judge Colleen Kollar-Kotelly, who presided over the Microsoft antitrust case, is overseeing the litigation and has said in prior orders that she encourages the use of alternative dispute resolution. Though American has been in bankruptcy for two years, the parent company AMR was set to exit court protection by merging with US Airways when the federal government and a group of states sued to block the deal. If the U.S. prevails in stopping the merger, it has been reported that re-organization will have to start anew, causing disruption among creditors. See more at http://bit.ly/1axsR2f and in case 13-cv-01236 U.S. v. US Airways Group, Inc., U.S. District Court for the District of Columbia.

New AAA Rules in effect for Complex Commercial Disputes

New rules by the American Arbitration Association (AAA) effective this month in "Large, Complex Commercial Disputes" help manage discovery by achieving an efficient and economical resolution of the dispute, while safeguarding a fair opportunity to present claims and defenses. Discovery in the form of production of documents is contemplated, as long as those material documents on which parties intend to rely are not otherwise available, reasonably believed to exist, and relevant to the outcome. This now specifically includes electronically stored information or ESI in the form most convenient and economical to the producing party-- unless the arbitrator finds good cause exists to require otherwise. The arbitrator also is empowered to determine reasonable search parameters for ESI and will weigh the need for ESI against the cost of locating and producing it. Reference to the arbitrator's power to authorize propounding interrogatories is removed, but the arbitrator can still permit depositions. Arbitrators may impose sanctions where there is willful failure to comply with obligations under AAA rules or an order of the arbitrator. Such sanctions could even limit a party's participation in the arbitration, adversely affecting determination of the outcome. However, defaults are not permitted as sanctions. Arbitrators under these new rules should be better equipped to control modern discovery and the costs associated with the advent of electronic discovery. They may also now hear and decide dispositive motions, if the arbitrator determines that the moving party has shown that the motion is likely to succeed and narrow the issues. See AAA rule changes here-- http://go.adr.org/LP=307 and summary http://bit.ly/16z6r3i

Mediation Week 2013

This week has been proclaimed by Governor Scott as Mediation Week in The State of Florida. In his proclamation, the governor stated, “Court programs use mediation to effectively and efficiently resolve disputes.” For the past couple of decades, Florida has led the field of alternative dispute resolution which has grown in acceptance, especially as litigation becomes more costly and lengthy with electronic discovery. There is certainly wide recognition that the majority of cases are resolved outside of the traditional adversarial process. Litigants, their attorneys and the judges they appear before routinely embrace multiple paths to settling lawsuits out of court, including mediation. Many jurisdictions are celebrating this week in conjunction with the American Bar Association's Mediation Week. This ABA initiative is cognizant of efforts in institutionalizing mediation as one of several appropriate dispute resolution processes, and one particularly utilizing self-determination of the parties. The American Bar Association puts out a toolkit of useful ADR materials you can find here-- http://www.americanbar.org/groups/dispute_resolution/resources/mediation_week_toolkit.html

Washington needs a Mediator!

Indulge me for a moment on the crisis facing our nation. In a dozen years of mediating, I've seen this play many times. The parties have drawn their proverbial lines in the sand and have taken intractable positions. Communication is all but ended and no one is facilitating a discussion (at least that the public can see). If our government is to resume operation, a mediator is necessary. As the late Roger Fisher observed, when interests are directly opposed, parties should use objective criteria to resolve their differences. Differences here have sparked a battle of wills, destroying any beneficial relationships between those governing. This is not only inefficient, but unlikely to produce agreement. Decisions based on reasonable standards make it easier for the parties to agree-- not to mention helping to preserve decorum and perhaps reminding public officials they serve the American people, which is what they were elected to do. The key may be to develop objective criteria that is both legitimate and practical. Widely accepted findings, professional standards, or legal precedent are possible sources of objective criteria. Testing for objectivity can be as straightforward as asking both sides to be bound by those standards. Rather than agreeing in substance, the parties may create criteria for resolving this crisis. A mediator could resist the typical pressures of politics and facilitate stubborn leaders refusing to be reasonable, shifting the discussion from substantive to procedural criteria in the search for a mutual, self-determined solution. God Bless America.

NCAA Concussion Case Mediation

Just as the NFL settles its concussion case with former players, the NCAA is reportedly entering a mediation with former Eastern Illinois players on November 1st. Retired federal jurist, Layn Phillips, is expected to be the mediator and is known for helping the NFL and NFLPA reach a recent settlement in that dispute. Plaintiffs are seeking money damages, as well as long-term medical monitoring by the NCAA and stricter concussion guidelines. Since the lawsuit was filed two years ago, the NCAA hired a chief medical officer to address the concussion issue. Attorneys for plaintiffs are still seeking class action certification for the lawsuit potentially affecting thousands of players. The NCAA's case was damaged by discovery of emails and information showing that less than half of NCAA schools require a player to see a physician post-concussion. NCAA chief legal officer, Donald Remy, has stated the association is willing to consider reasonable mediation options that address student-athlete health and safety concerns. The NCAA still faces lawsuits in the O'Bannon licensing case, from Coach Paterno's family, and on appeal regarding investigation of former USC assistant coach Todd McNair. See story here-- http://cbsprt.co/1fzXEQ6 and NCAA site commentary on concussion management-- http://bit.ly/18XKJq9

Detroit Deals by Multiple Mediators?

The mediation of the largest municipal bankruptcy in U.S. history utilizes judges as mediators to negotiate the most difficult disputes in trying to resolve billions in Detroit's bond and pension obligations. Proposed restructuring of obligations sparked outrage from city retirees whose pensions and benefits could be cut drastically. Hon. Gerald Rosen, Chief Judge of the U.S. District Court for the Eastern District of Michigan, was charged with overseeing confidential mediation, along with mediators of Judge Rosen's choosing. Judge Rosen appointed other mediators from the judiciary. Bankruptcy judges often utilize mediators as a way to bring together parties in private who might find it difficult to reach a consensus through a more open court process. The city and dozens of creditors launched negotiations this week in hopes of striking deals that could speed the Detroit bankruptcy case. Almost a hundred lawyers representing city pension funds, unions, retirees, the state and bondholders attended the first joint mediation session at federal court in downtown Detroit. Judge Rosen reportedly urged creditors to “Open your minds to areas where we can reach agreements.” Rosen was joined by his colleagues, including several judges from across the country. Negotiations will continue in the weeks ahead before all parties return to Detroit for additional talks next month. Portland based U.S. Bankruptcy Judge Elizabeth Perris will mediate a dispute between the city and bondholders; U.S. District Judge Wiley Daniel of Colorado was assigned to talks involving retirees; U.S. District Judge Victoria Roberts will handle mediation with unions, including the UAW and the American Federation of State, County and Municipal Employees; and Retired U.S. Bankruptcy Judge David Coar of Illinois will mediate disputes involving the Detroit Economic Growth Corp. and Downtown Development Authority. All agreed the future of the region is at stake. See news item here-- http://bit.ly/1aLDPCv

NFL Helmet Maker Mediation

Last month, before the start of the NFL regular season, thousands of former players settled with the National Football League over concussion-related suits for $765 million. However, the apparent amicable resolution to their case doesn’t mean litigation is over. NFL helmet manufacturer Riddell and former players are continuing talks because the deal doesn’t include Riddell. While those negotiations remain confidential by order of the federal judge to "refrain from publicly discussing the mediation process or disclosing any discussions they may have as part of that process,” the proposed settlement between the NFL and some 4,500 former players awaits court approval and a determination on fees. In a prior order, the presiding judge, Hon. Anita Brody, expressed her belief that "the interests of all parties would be best served by a negotiated resolution of this case. The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football.” Riddell may remain exposed following a state jury verdict this year in Colorado, determining that Riddell failed to adequately warn a former football player about the dangers of concussions, resulting in a $3.1 million damages. In this federal matter, Riddell had argued their case should be heard separately from the case against the NFL, but a motion to sever was never granted before ordering the Riddell defendants into the global mediation. See articles here-- http://bit.ly/1fXmCX8 and http://bit.ly/15hvyFk

Join me next month for It-Lex's Innovate

Technology is outpacing the law. IT-Lex is a Florida not-for-profit organization dedicated to narrowing this gap with entertaining educational experiences. I'll be speaking with nationally known members of the judiciary such as Magistrate Judge John Facciola on cooperation in E-discovery at the first annual conference, Innovate. The Innovate conference will take place on October 17 & 18 in Winter Park, Florida at the brand new Alfond Inn at Rollins College and is designed as an interactive learning experience. Participants are encouraged to email specific questions or comments on our various topics to innovate@it-lex.org. You can email us before or during the conference and presentations, and your participation is a key part of the conference experience. Come join us in introducing new methods and ideas to tackle emerging technology law issues with experts like Ken Withers of The Sedona Conference. See more information here-- http://it-lex.org/innovate/ or the full PDF here- http://it-lex.org/wp-content/uploads/2013/09/Innovate1.pdf

NFL Settles Concussion Claims

Just before the start of the regular season, thousands of former players settled today with the National Football League (NFL) over concussion-related suits. The league will reportedly pay $765 million for medical benefits and injury compensation to retired players, as well as funding medical exams, research and litigation expenses. Former U.S. District Judge, Layn Phillips, mediated the settlement and stated,"Rather than litigate literally thousands of complex individual claims over many years, the parties have reached an agreement that, if approved, will provide relief and support where it is needed at a time when it is most needed." NFL Commissioner Roger Goodell and the owners gave the legal team direction to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The lawsuits accused the league of hiding known risks of concussions for decades to return players to games and protect its image. See story here-- http://on.wsj.com/1a2uTM0 and NFL press release http://www.nfl.com/news/story/0ap1000000235494/article/nfl-explayers-reach-settlement-agreement-in-concussion-suit

ADR Bars Fees in Auto Defect Suits

Congress in 1975 set forth a policy to encourage warrantors to establish procedures whereby consumer disputes could be fairly and expeditiously settled through informal dispute settlement mechanisms under the Magnuson-Moss Act. Apparently, this was not successful enough in resolving consumer disputes regarding chronically defective automobiles. Consequently, many states enacted Lemon Law legislation to address perceived problems. Use of Better Business Bureau's (BBB) Auto Line is required prior to filing suit under the Magnuson-Moss Act, but is not a prerequisite to an action under the Lemon Law. A three-judge panel of the Superior Court of New Jersey’s Appellate Division recently ruled in Nissan’s favor, stating consumer claimants were not eligible for attorneys’ fees as a matter of law because they were bound to an alternative dispute resolution process as a term of their warranties. Claimants signed away their rights to pursue civil actions by accepting arbitration decisions. BBB Auto Line requires aggrieved consumers to mediate the claim first, then proceed to arbitration if the mediation process proves unsuccessful, with the consumer given a choice between an impartial arbitrator or a three-person panel. Plaintiffs were sent to Auto Line after first trying to circumvent that forum with civil suits. While successful in getting Nissan to repurchase the defective vehicles, the arbitrator did not award attorneys’ fees-- prompting new suits and an appeal when trial judges dismissed those suits. The appellate panel found that Plaintiffs were not entitled to attorneys’ fees because of their participation in the ADR process and signatures on settlements that waived legal action related to the same claim. Plaintiffs were not bound to accept the informal dispute settlement decision, but neither rejected the award of repurchase in favor of initiating legal action with the hope of collecting attorneys' fees. It was found the absence of an attorneys' fees award neither violates statutes nor offends public policy. See story here http://bit.ly/1aLYWH7 and opinion http://www.judiciary.state.nj.us/opinions/a6034-11a0116-12.pdf

Deen Deal

A discrimination and harassment lawsuit against celebrity cook Paula Deen was dismissed today pursuant to a settlement. Deen lost lucrative endorsements and her Food Network cooking show due to the allegations, while the publication of a highly anticipated cookbook was canceled after she said under oath that she had used racial slurs in the past. Filings in U.S. District Court in Savannah, Georgia revealed dismissal of the lawsuit with prejudice, without any award of costs or fees. The dismissal deal came just after Judge William T. Moore threw out the race discrimination claims by a white plaintiff that had no standing to sue over what she said was poor treatment of black workers. Deen’s own words that ended up causing serious damage to her public image and income. The lawsuit was paid little attention for over a year, until the Plaintiffs' lawyer questioned Deen under oath in, asking if she has ever used the N-word. “Yes, of course,” Deen replied, though she added: “It’s been a very long time.” Within a few days, the Food Network didn’t renew Deen’s contract and yanked her shows off the air. Smithfield Foods, the pork producer that paid Deen as a celebrity endorser, dropped her. Retailers, including Wal-Mart and Target, would no longer sell Deen’s products. Judge Moore issued an order stating he still plans to hear whether the lead Plaintiff attorney should be sanctioned for what Deen’s lawyers called unprofessional conduct in the case designed for embarrassing media exposure. However, a filing by Deen’s attorneys asked the judge to drop their motion for sanctions. Forbes magazine last year ranked Deen as the fourth-highest-earning celebrity cook last year, figuring she had hauled in $17 million. Her company Paula Deen Enterprises generates total annual revenue of nearly $100 million. See stories here-- http://wapo.st/1c1Zoio and http://bit.ly/189fjHr

Dem Bones, Dem Royal Bones

A British high court has allowed judicial review of a decision to reinter the remains of King Richard III, unearthed in a parking lot after 527 years. However, a second so-called Wars of the Roses may be underway. Leicester Cathedral is one site that has the support of the government, but the British public want their say as well. Almost 30,000 people signed a petition to get a formal hearing on where the final resting place should be. The King's descendants say the he should be in York and now challenge Leicester’s plans through the Plantagenet Alliance, formed soon after the Ministry of Justice made the call on what would become of the remains. The Judge encouraged an out of court settlement be achieved, warning the parties against an “unseemly, undignified and unedifying” legal recurrence of the Wars of the Roses-- a civil battle between the families of Lancaster and York (named after their respective heraldic symbols of the red and the white rose). The court's reason for granting a review: “The archaeological discovery of the mortal remains of a former King of England after 500 years is without precedent.” The judge also noted economic implications in terms of prestige and tourism which could benefit the city or place or institution where King Richard III’s skeleton rests. England's most reviled monarch, depicted by Shakespeare in the play that bears his name as the wicked, hunchback murderer of his nephews in the Tower of London, may just have his reign re-examined as the litigation over where his bones should be, takes place. See stories here: http://nyti.ms/1bP4LRQ and http://bit.ly/1dgxctO

Oldest Synagogue Suit

In dueling suits over ceremonial bells that adorn the handles of the Torah scroll when not in use in the nation's oldest synagogue, a mediation has resulted in impasse. Jewish leaders participated in a mediation overseen by U.S. District Judge William Smith in Providence regarding a set of valuable Colonial-era Torah finial bells and about who owns and controls the 250-year-old Touro Synagogue. Touro is a National Historic Site with tens of thousands of visitors every year. Both sides have sued in federal courts; the synagogue's current congregation, Jeshuat Israel, in Rhode Island, and Congregation Shearith Israel (established in 1654), in New York. The dispute started after present leaders at Touro agreed to sell the bells, called rimonim, for $7.4 million to the Museum of Fine Arts in Boston. Leaders of the New York congregation say it owns Touro, its cemetery, Torahs, rimonim and other religious objects. The nation's second Jewish congregation was established in Newport four years after the New York congregation, but in 1822, the city's last Jewish resident left and Touro fell into disrepair. Sacred items, including Torah scrolls and possibly the finial bells, were transferred to the New York congregation. Touro reopened in the late 1800s, and in 1903, the Newport congregation signed a $1-per-year lease to rent Touro from Congregation Shearith Israel. Congregation Shearith Israel opposes the sale of the bells, saying it violates religious practice and will remove ownership of the bells from the Jewish community. The New York congregation is also seeking to remove the Newport congregation from practicing at Touro, saying it is violating the terms of the lease. Touro's leaders say Congregation Shearith Israel is only a trustee for the Newport synagogue and can't dictate what is done there. Touro has two sets of finial bells made in the 1760s or 1770s by Colonial silversmith Myer Myers, a Jewish contemporary of Paul Revere's from New York. Its congregation seeks to sell one set to establish a trust that will pay to maintain the synagogue and to ensure there is always a rabbi in residence. Congregation Jeshuat Israel maintains displaying the bells at the Museum of Fine Arts would allow more people to see them. The museum's offer has been rescinded until the ownership dispute is resolved. U.S. District Court Judge John J. McConnell Jr., has lifted a stay and a decision on transferring venue remains pending. Touro is celebrating its 250th anniversary and will hold its annual reading of the famous 1790 letter George Washington wrote to the Jewish community in Newport affirming the new nation's dedication to religious tolerance, saying it "gives to bigotry no sanction, to persecution no assistance." U.S. Supreme Court Justice Elena Kagan will be the keynote speaker at an event this weekend. See stories here-- http://abcn.ws/13i8ur8 and http://bit.ly/19r9pIk and synagogue website-- http://www.tourosynagogue.org/index.php/history-learning/synagogue-history

Microsoft SkyDrive Settlement

Microsoft's cloud storage brand, SkyDrive, will undergo a name change following defeat in a trademark case brought by the British Sky Broadcasting Group or BSkyB. In U.K. legal proceedings against Microsoft alleging the name infringed on its British Sky trademarks, a ruling by the England and Wales High Court went in BSkyB's favor. Consumer confusion was cited as a factor in the decision. Because the use of SkyDrive brand is invalidated in Europe, rather than develop an alternative label for Europe, Microsoft entered into a settlement deal with BSkyB that will allow the software company to use the SkyDrive name as it prepares to launch a global re-branding effort. Microsoft reportedly had planned to appeal the decision, but then reconsidered. The companies announced that Microsoft will continue using the SkyDrive name for a reasonable period of time to allow for an orderly transition to a new brand. BSkyB vowed to remain vigilant in protecting the Sky brand, saying it would take appropriate action against companies using the Sky trademark without consent. Interestingly, the litigants actually partnered to bring Sky programming to the Xbox 360, an agreement they plan to extend to the upcoming Xbox One console. See story here-- http://bit.ly/155mZbN

Motor City Mediation?

U.S. Bankruptcy Judge Steven Rhodes, who is overseeing the largest municipal bankruptcy in U.S. history, has proposed appointing a federal district judge as mediator to negotiate the most difficult disputes in trying to resolve some $18 billion in Detroit's bond and pension obligations. Proposed restructuring of obligations sparked outrage from city retirees whose pensions and benefits could be cut drastically. Judge Rhodes tapped Hon. Gerald Rosen, Chief Judge of the U.S. District Court for the Eastern District of Michigan, to oversee any confidential mediation or another mediator of Judge Rosen's choosing. That way, Judge Rosen can mediate disputes or appoint other mediators, with the costs shared by the negotiating parties. Details about the mediation talks would not be disclosed, but any agreements would be made public. Next month, Judge Rhodes will consider deadlines for the city to file its formal plan for repaying its obligations and for rejecting collective bargaining agreements. Bankruptcy judges often utilize mediators as a way to bring together parties in private who might find it difficult to reach a consensus through a more open court process. Judge Rhodes also proposed an order appointing an examiner to review fees to be paid by Detroit. See stories here: http://reut.rs/1aMUiWH and http://usat.ly/15QCKWE

Join me next month at Professional Mediation Institute!

On August 21, 2013 in Orlando, Florida the Professional Mediation Institute or PMI will conduct its fourth annual education program. This year, each program will be recorded, and all attendees will be provided with access to the recordings. Though it is impossible to attend two sessions at once, this format ensures attendees can gain access to fulfill their entire Continuing Mediator Education (CME) requirement with one seminar registration. In addition to plenary sessions, three simultaneous programs will be presented during each hour. With a multitude of experts from around the country, this program will focus on specific areas of interest. I will be speaking on commercial mediation intricacies. There are two programs on domestic violence in mediation, three programs on mediator ethics, and an outstanding program on diversity concerns. For Florida mediators, CME credits in these disciplines is required; these topics are a great tool for all great mediators regardless of CME requirements.See more details here: http://www.pmi360.com/ and my speaker bio http://www.wci360.com/files/uploads/2013/Kolin,%20Lawrence%20%202013.pdf Look forward to seeing you next month!

Concussion case by NFL players heads to Mediation

A federal case brought by former National Football League players that accuses the league of hiding dangers of concussions has been ordered to mediation. A pending motion to dismiss the case will be taken under advisement until September, giving the mediator time to bring the sides closer together. United States District Court Judge Anita Brody of Pennsylvania, ordered a retired federal judge to serve as mediator in the case. Players have charged that the league concealed for decades what it knew about the long-term effects of repeated hits to the head. The NFL maintains it issued warnings consistent with medical research available at the time. Additionally, the league contends player safety is governed by collective bargaining agreements. Each side has made strong arguments, but there is incentive to settle early. Though the owners have greater ability to absorb legal fees, discovery over a period of years could unearth evidence that might hurt the league’s reputation. Likewise, retired players, many of whom have significant health concerns, may prefer to settle sooner for less. Without a ruling, the scope of the case remains wide, involving players from decades ago, as well as those who retired recently. “Presumably, the [mediator] is experienced and he can give both sides an appraisal of the case from the perspective of someone who’s sat on the bench,” said Matthew Mitten, director of Marquette University's National Sports Law Institute. “It doesn’t hurt to take a step back and take a reality check.” See full article here-- http://nyti.ms/1bkQYmL

America's Cup Mediation Stalls

In a sport of titans filled with rules, legal battles are inevitable. With the opening of the preliminary Vuitton Cup approaching, New Zealand is protesting rule changes following the death of British sailor Andrew Simpson whose catamaran capsized. Changes to the 72-foot cats are said to potentially lead to more injuries, as a rule now allows for elevators to extend beyond the beam of the boats. New Zealanders say they built their boat under a set a rules that now has been changed-- cutting their competitive advantage. The America's Cup organization claims boats will be legal whether they use the new rudder configuration or the old one. A recent mediation aimed at reaching agreement on implementing safety recommendations previously issued by the regatta's director ended after four days. Teams reportedly agreed on the vast majority of the safety recommendations which was thought to be a useful and positive exercise that left only a couple of points unresolved. All 37 recommendations developed in consultation with the teams following the fatal capsize will remain part of the permit application submitted to the US Coast Guard. Iain Murray said it was useful to hear the teams’ perspective on safety from a competitive viewpoint. “As Regatta Director, I have a clear task. For me, safety means safety for everyone. Full stop. I stand behind all of the original recommendations to increase safety...I look forward to working with the Coast Guard, teams and other stakeholders to ensure we run a safe and successful America’s Cup this summer.” Hopefully, the winds of accord will pick up before racing commences Sunday. See http://www.americascup.com/en/news/3/news/15969/mediation-makes-good-progress-but-ends-without-final-resolution and http://usat.ly/163IdI1 and http://www.bbc.co.uk/sport/0/sailing/23166664 and http://www.nytimes.com/2013/07/04/sports/Sailing-on-Air-With-Americas-Cup-Catamarans.html?pagewanted=2&ref=general&src=me&pagewanted=print

Funny post about Apple v. Samsung payment brings reminder

A humorous fictional piece circulating on the net and in social media about the payment of a billion dollars by Samsung to Apple in the form of thirty trucks loaded with nickels reminds parties and their lawyers drafting terms of the need for providing specificity of payment terms in any settlement agreements. Though providing funds by check to the trust account of the lawyer on behalf of the client in a set number of days is the most common form of payment, the straight wiring of funds between parties' financial institutions is increasing. The wiring of money in settlement agreements often includes specific routing instructions and provides time for funds to clear. Typical time frames are 30 to 45 days from the confidential conference if a deal is reached at mediation, though the presence of insurance sometimes shortens this to twenty days. Tax consequences of business dispute payments versus personal injury settlements should also be explored. In any event, if you like Onion-style stories and need a quick laugh, see http://www.zurmat.com/2012/08/29/samsung-pays-apple-1-billion-sending-30-trucks-full-of-5-cent-coins/ and http://www.snopes.com/politics/satire/samsung.asp

New FL Ninth Judicial Circuit Biz Court Procedures

Now approaching a decade in existence, Florida's Ninth Judicial Circuit Complex Business Litigation Division or "Business Court" in Orlando specializes in handling complex business cases, such as antitrust, commercial foreclosure, intellectual property, franchise and unfair competition lawsuits. The goal is to handle business litigation matters in a more effective and efficient manner, much like the federal courts. The Business Court Procedures, known locally as the BCP, have just been revised retroactive to April 1, 2013 (in conjunction with civil division e-filing http://www.ninthcircuit.org/about/divisions/civil/downloads/ECF%20NOTICE%20final.pdf). New and notable is the requirement of attorneys who provide more than 50 pages of materials to the court for hearing preparation (typically done by the delivery of indexed binders) to provide this material now only on a USB drive. Also significant is the change to BCP 5.11(a) which requires that contested discovery motions be fully briefed unless the motion will be heard by the magistrate, or unless excused by the trial judge. The use of mediators and magistrates may be discussed the case management process, as well as in resolving ESI disputes arising out of electronic discovery. See Biz Court links here-- http://www.ninthcircuit.org/about/divisions/civil/complex-business-litigation-court.shtml and revised BCP http://www.ninthcircuit.org/about/divisions/civil/downloads/Business-Court-Procedures.pdf

Mass. Airport Mediation over Secret Service Damage

Marlboro Airport in Massachusetts is suing the United States Secret Service for just under $700,000 in property damage allegedly caused by an April Fool’s Day visit a couple of years ago by the President. The owners of the public facility and the government have agreed to sit down and will try to work things out in order to avoid a trial set for the end of this summer. U.S. District Court Judge Timothy S. Hillman of Worcester sent the case to mediation. The lawsuit claims Marine helicopters and an armored convoy, including a twenty ton fire-suppression truck and other security vehicles, tore up the 1,682-foot runway and grass apron. This happened during the Commander-in-Chief’s April 1, 2010 surprise visit to the Massachusetts Emergency Management Agency bunker in Framingham, around the time of record rainfall and flooding there. According to court filings, the Massachusetts Department of Transportation Aeronautics Division reported finding widespread damage to Marlboro Airport it attributed to the visit. The report cites moderate to serious cracks and ruts along the entire length of the runway with pavement breakup, which “was further damaged by the heavy vehicles and helicopters of the presidential security details.” See stories here- http://bit.ly/1a6CLGH and http://bo.st/9foi9Y

Federal Preemption and Arbitration Clauses in Motor Vehicle Franchises

About a decade ago, manufacturers took advantage of policy favoring arbitration and began routinely including mandatory arbitration clauses in their dealership agreements. Whether a manufacturer can enforce mandatory arbitration in a motor vehicle franchise agreement requires an analysis of competing state and federal statutes, as well as a determination of what is a "motor vehicle." A federal district court in New York recently held the Motor Vehicle Franchise Contract Arbitration Fairness Act, 15 USC 1226, did not limit a franchisor's effort to arbitrate a dispute concerning dealer agreements for snowmobiles and all-terrain vehicles. However, the federal Fairness Act did serve to block arbitration of claims regarding the same dealer's motorcycle franchise. The dealer agreement provided any claims arising between the parties were subject to mandatory arbitration, but the parties agreed that each product line was considered to be a separate franchise. Suit was first filed in state court, seeking injunctive relief, and was removed to federal court where defendant filed a motion to compel arbitration. The court inquired whether the cause of action was subject to arbitration based on the following: (1) whether the parties agreed to arbitrate; (2) the scope of the agreement; (3) if federal statutory claims were asserted, whether Congress intended that certain claims be nonarbitrable; and (4) if not all of the claims were arbitrable, whether to stay the balance of the proceedings pending arbitration to avoid confusion and the possibility of inconsistent results. Under state law, a mandatory arbitration clause in a motor vehicle franchise agreement is converted into a consensual arbitration clause, though state law was preempted here by the Federal Arbitration Act (FAA). The federal Fairness Act defines "motor vehicle" as one primarily for use on public streets, roads and highways. This definition excluded claims related to snowmobiles and all-terrain vehicles. As for venue, interestingly, the FAA grants district courts the power to compel arbitration only within their own districts. See 9 USC 4. It is likely resolution of the arbitration will dictate how the motor vehicle-related motorcycle claims will be determined. See more here-- http://bit.ly/14qjxLI and Champion Auto Sales, LLC v. Polaris Sales Inc., 2013 U.S. Dist. Lexis 65219 (E.D.N.Y. Mar. 27, 2013)

Memorabilia Mediation

NBA Los Angeles Laker Kobe Bryant's mom claims her son lied to block her planned sale of his memorabilia. Bryant's father, a former basketball player who went by nickname "Jellybean," and grandmother are siding with Bryant's mother, saying Kobe Bryant had declined to take the collectibles from his parents' home. Bryant's sister supports him, suggesting their mother repeatedly discussed how to make money from the superstar's belongings. Opposing lawsuits have erupted over an auction of collectibles from Kobe Bryant's past at a New Jersey auction house. Items to be sold next month include jerseys, trophies and rings from his high school and professional career. Kobe Bryant denies giving his stuff to his mom and wants the items for his children. Pamela Bryant contends that the collectibles have been in her possession for at least 15 years and that she paid some $90,000 to store the items. After Kobe Bryant sent a cease-and-desist, the auction house sued for court approval. The firm noted that it has paid a $450,000 advance to Bryant's mother, who used it to buy a house in Las Vegas. Kobe Bryant filed his own lawsuit May 7 in California, seeking to block the sale. Now a federal judge has directed mediation before a possible June trial. U.S. District Judge Renee Marie Bumb set a mediation session for May 17 in New Jersey, for the parties to try and settle during an in-person conference in chambers. Last week, California U.S. District Judge Andrew Guilford issued an order in federal court, that blocks Goldin Auctions from selling or transferring the jerseys, rings, and other sports memorabilia that Bryant says belong to him. Bryant originally sued the auctioneer in Orange County, California state court four days after the auctioneer sued the Laker in New Jersey federal court. Goldin Auctions removed to federal court, prompting a temporary restraining order. See cases: Bryant v. Goldin Auctions, 13-cv-727, U.S. District Court, Central District of California (Santa Ana); and Goldin Auctions LLC v. Bryant, 0013-cv-02816, U.S. District Court, District of New Jersey (Camden). See stories-- http://usat.ly/16aIQFr and http://bloom.bg/14liEU0

Join me next Tuesday, May 14th for E-Neutrals CLE

The Supreme Court of Florida approved proposed E-discovery rules for state cases last fall. The court adopted amendments to case management to include electronically stored information or ESI. The new rules have affected the state’s diverse legal community of trial attorneys. They aim to streamline case management, but also impose unfamiliar burdens on practitioners who are new to E-discovery. Neutral third parties, such as special magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting a Tuesday afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp for more information.

Class Arbitration?

Recently, because of a split of authority, the U.S. Supreme Court heard argument on whether an arbitrator exceeded his powers under the Federal Arbitration Act in determining parties agreed to authorize class arbitration using broad contractual language. Justices apparently expressed an unwillingness to create a special standard for reviewing class arbitration decisions for this particular result. Cases like Stolt-Nielsen and Concepcion established a presumption of no consent to class arbitration without a clear meeting of the minds. However, the Court repeatedly gives a highly deferential standard of review to decisions by arbitrators, preventing most inquiries into the merits of an arbitrator’s award. There are generally very limited grounds for vacating an arbitration award. To argue the arbitrator exceeded his power requires manifest disregard of the law or clearly governing legal principle. Still, the Court appeared skeptical of the capability of arbitrators to handle class actions, even questioning incentive. In this case, the class involved some 20,000 doctors. Inquiries into arbitrator compensation and experience went unanswered, since that information is non-public. Congress passed the Federal Arbitration Act in 1925 to encourage litigants to settle disputes without resorting to litigation. Should the Court rule for business here, arbitration of class actions could squelch these cases before they become high stakes gambles. See docket- Oxford Health Plans v. Sutter http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-135.htm and discussion here- http://bit.ly/121VC1l and article here- http://onforb.es/14lln2A

Mediation Confidentiality upheld in Dodgers Divorce

This week, Delaware U.S. Bankruptcy Judge Kevin Gross (who reportedly initiated a 2011 mediation between the bankrupt Los Angeles Dodgers and Major League Baseball) blocked former Dodgers owner Frank McCourt's ex-wife from obtaining confidential mediation documents she sought to convince a California court to reconsider her $131 million divorce settlement. Discovery requests seeking documents developed during the mediation process were ordered withdrawn, as such information was found to remain confidential under prior orders, as well as local rules. The judge enforced conditions that confidential documents provided to the mediator are privileged and are not to be produced. The original order appointing the mediator laid out that documents produced could not be used in any other forum. The divorce was based on a $294 million valuation of the Dodgers and other assets. However, the bankrupt team was sold last year for a record $2 billion to an investors led by Magic Johnson. Counsel representing the Dodgers and MLB's commissioner argued that confidentiality promised by the meditation order must be upheld. Judge Gross attributed success of the deal to the nature of the mediation process itself, which allowed parties in a highly visible case to negotiate confidentially. Mrs. McCourt's move to obtain information amounted to an “attempt to invade the mediation process,” Judge Gross said, and was “frankly, shocking to the court's conscience.” Limitations, however, include documents that are otherwise discoverable and not immune to discovery simply because they were submitted to the mediator. See story here- http://bit.ly/11nqY53 See also, In re: Los Angeles Dodgers LLC et al., case number 1:11-bk-12010, in the U.S. Bankruptcy Court for the District of Delaware.

Spider-Man musical settles, avoiding the sticky web of trial

Producers of the musical “Spider-Man: Turn Off the Dark” and its former director, Julie Taymor, settled a lawsuit over copyright claims, artistic credit and profits for the most expensive show ever on Broadway. Taymor originally filed suit on copyright grounds after being fired, claiming producers made money from her ideas and script and owed her more than $1 million. The producers countersued, saying they fired her for breach of contract. U2's Bono and the Edge, and Marvel Entertainment (licensor for the Spider-Man brand), were also involved. Taymor had approval of future tours and versions of scripts that ended with the deal, freeing future transformation of the show for venues like Las Vegas. Despite confidentiality, reported sources with knowledge of the settlement said the terms included reductions in royalties due to the high operating cost, with financial concessions improving the show’s prospects for a continuing run and to recoup the $75M production. Spider-Man has become one of the top-grossing musicals on Broadway, as well as a fan favorite-- despite negative reviews. Trial was set to begin next month in Manhattan federal court. A highly publicized trial would serve no one’s interests, according to several associates of Taymor and the producers. Tours and new productions are planned and trial apparently threatened to complicate those efforts. The fate of a documentary about the creation of the musical remains unclear. See news item here- http://nyti.ms/111rQvG

BP Settlement Fund business loss payouts to continue per Judge

New Orleans U.S. District Judge Carl Barbier denied BP's attempt to halt payments from a settlement fund to reimburse businesses and individuals for losses from the 2010 Deepwater Horizon accident in the Gulf of Mexico. The court rejected BP's arguments that the fund administrator misinterpreted claims and miscalculated payments, amounting to fictitious claims. The judge previously upheld interpretation of settlement terms governing payments to businesses affected by the spill. BP sought an injunction blocking making payments to businesses. BP maintains decisions made in claims handling expose the company to losses never contemplated in the settlement. Attorneys who brokered last year's deal with BP say the request was designed to set up an appeal to the United States Court of Appeals for the Fifth Circuit to review the matter. The oil company filed a notice of appeal and is reportedly evaluating how to proceed following the ruling to preserve rights and prevent so-called meritless awards. Last year, BP estimated it would pay roughly $7.8 billion to resolve tens of thousands of claims by businesses and individuals covered by the settlement. The company now claims it can't give a reliable estimate for the total value of the deal. According to experts, it appears difficult to reopen the settlement at the appellate level because of extensive negotiation and ultimate approval by BP and its legal team. The hearing last Friday took place during a break in the sixth week of the continuing civil trial aimed at determining the degree of culpability that BP and other companies have for the accident. See stories-- http://on.wsj.com/14KdZxJ and http://usat.ly/10kDou3

Diamonds are Forever; What's in a slogan?

U.S. District Court Judge John Adams of Ohio ordered Sterling Jewelers Inc. and Zale Corporation into mediation in a diamond advertising lawsuit. Sterling, a unit of Signet, sued Zale last fall, alleging Zale's advertisements for the Celebration Fire diamond as "the most brilliant diamond in the world" were false and misleading. Sterling, based in Akron, said its tests found that its own diamonds are as glittery as those sold in Zales. In the lawsuit, Sterling demanded that Zale's advertisements be pulled. However, multimillion-dollar ads remained in place throughout the winter holiday shopping season and the court denied Sterling's request to pull them. At a preliminary injunction hearing earlier this year, the judge said that Sterling had not shown that it would suffer financially, even if it could prove that Zale's boast of the most brilliant polished diamond in the world was false. In accordance with the referral to mediate, both parties have until April 10th to review, confer and appoint court approved federal mediators and must come to agreement by May 2nd. Sometimes a mediation following a TRO, which is like a mini-trial, is more productive, as the parties have seen a preview of the court's reaction to claims and defenses and are ready for a self-determined solution. See stories here-- http://bit.ly/13QA3b1 and http://bit.ly/11WJgJP and http://on.wsj.com/11VSx7J

Judge Questions SEC Settlement

Manhattan Federal District Judge Victor Marrero today questioned a hedge fund paying the government $600 million in penalties to settle insider trading accusations while not having to admit doing anything illegal. Reserving judgment on approving the settlement during a hearing on the landmark deal between the Securities and Exchange Commission and SAC Capital Advisors, the judge found it incongruous when told the client merely made a business decision in agreeing to pay such a large fine. Allegations included illegally trading pharmaceutical stocks after a former portfolio manager obtained secret information from a doctor about clinical drug trials. The hearing focused heavily on “neither admit nor deny wrongdoing” language in the agreement. Reportedly, federal judges across the country have expressed concerns over whether government agencies are letting defendants off too easy by not forcing them to admit liability. Last year, District Judge Jed S. Rakoff rejected the settlement in a fraud case brought against Citigroup by the SEC that let the bank avoid acknowledgment that it did anything wrong. That decision and whether he exceeded his authority in rejecting the settlement is now under review by a Federal Appeals Court. As such, Judge Marerro hinted that he might condition any approval of the SAC settlement on the outcome of the Citigroup appeal. Though the United States Court of Appeals for the Second Circuit is likely limited to Judge Rakoff’s ruling within the context of the specific facts of the Citigroup case relating to the bank’s sale of a complex $1 billion mortgage bond deal, it could impact other cases. Judge Marerro noted that other federal judges across the country had recently followed Judge Rakoff’s lead and cast skepticism on the “neither admit nor deny language,” in some cases demanding greater accountability before approving settlements. SEC counsel urged Judge Marerro to approve the settlement with SAC, despite the pending appeals court decision, acknowledging risk of a shifting legal landscape. “But the ground is shaking,” said Judge Marerro,“there are tremors.” See full story here-- http://nyti.ms/11TD9G0

Bracket Madness

As it's the season of NCAA basketball brackets, I thought I'd take a moment during March Madness and explore bracketing-- in mediation, that is. Bracketing can be a useful tool in breaking through a stale negotiation. Mediation usually begins with offers intended to send messages to each side, but which are frequently unrealistic in a given dispute. Offers in the early rounds typically remain outside the range of numbers likely to lead to ultimate resolution. Parties can then fall into a pattern of mirroring small incremental movements, until the dance stalls in frustration. While not appropriate for every session, Mediators may effectively pull brackets from their toolbox at this juncture. Because bracketed numbers re-frame the bargaining, parties begin to see the negotiation anew. Settlement becomes a Cinderella team in the tourney. During this process, even exploring potential agreement encourages the parties that the other side still intends to make a good faith effort to strike a deal. Resolution can sometimes remain out of reach until the parties find their way to bargaining bracketed by what each perceives as reasonable numbers. Plaintiffs and defendants might similarly argue just how far each has moved from its initial, often pie in the sky position. However, movement toward a number that is realistic has a better chance to settle the matter. Mediators try to keep conversations with the parties and their counsel going, pushing nuances and nuggets of the case, while identifying underlying interests. As a result, information about the respective risks then drives a numerical range within which settlement can most likely occur. Though parties may propose this strategy, it is better if the mediator introduces the concept of bracketing as a neutral and then caucuses to a conditional range, eventually finding common ground. With a win-win, you get a result superior to 63 of the teams in the tournament!

Knocking heads together for NFL settlement

At NFL meetings this week, settlement of a class action lawsuit against the league by retired players was announced along with the creation of a league fund to help former players in need. Jim Brown, who lobbied hard for the deal, was asked incidentally about his opinion of the proposal to ban backs from using their head to smash into defenders. “I didn’t use my head,” Brown said. “I wasn’t putting my head into too much of anything. I don’t think that’s a good idea." The NFL agreed to pay $42 million as part of a settlement with a group of retired players who challenged the league over using their names and images without consent. The league will use the money to fund a trust to help retired players with an array of issues including medical expenses, housing and career transition. The settlement also establishes a licensing agency for retired players to ensure they are compensated for the use of their identities in promotional materials."We look forward to building an unprecedented new relationship with retired players that will benefit everybody, especially those who need extra medical or financial assistance," Commissioner Roger Goodell said in a statement issued by the league. The federal class action lawsuit accused the NFL of blatantly exploiting retired players' identities in films, highlight reels and memorabilia to market the league's "glory days." The so-called Common Good fund will be administered by a group of retired players approved by the court. A licensing agency will for the first time market retired players' publicity rights in conjunction with the NFL, making it easier for retired players to work with potential sponsors and advertisers. A new licensing agency, to be overseen by a board of retired players, will streamline that process for one-stop shopping. The league will also pay another $8 million in assorted costs associated with the settlement, including money needed to help set up the trust and pay attorneys. The settlement still needs court approval. Retired players will have the chance to review the settlement throughout the summer, when final approval is scheduled. See items at http://bit.ly/ZYSmUF and http://on.nfl.com/ZtAHW8

Save the Date (5/14) for E-Neutrals in E-Discovery Disputes CLE

Last fall, the Supreme Court of Florida approved proposed E-discovery rules for state cases. The court adopted amendments to case management to include ESI. The new rules will affect the state’s diverse legal community of trial attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to E-discovery. Neutral third parties, such as special magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting an afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp for more information.

Martha Stewart Mediation

After weeks of testimony, in an unusual move, the judge presiding over trial in lawsuits that Macy’s brought against J. C. Penney and Martha Stewart Living Omnimedia sent the parties to mediation. If the companies do not reach an agreement before April 8, Justice Jeffrey K. Oing of New York State Supreme Court will continue hearing the case. Representatives for the companies said they would participate in the mediation process. Macy’s had a contract with Martha Stewart for exclusive rights to bedding, bath and kitchen ware. However, in 2011, Penney's made a multimillion dollar investment in Stewart's company and announced it would be selling those products, as well. Penney's and Stewart’s company claim they have not violated the Macy’s contract because the Penney products would be sold in a store within a store. Interestingly, this will be the first mediation for the companies. Before the trial, a preliminary injunction was won by Macy's and it remains to be seen if the court will broaden the injunction, which would stop Penney's from selling Stewart's products in contested categories until the case is decided. Penney's said it won't sell any products that are deemed exclusive by Macy's before mediation concludes. Stewart reportedly said that in advance of the mediation order she and Macy’s chief executive had a productive conversation regarding the ongoing contract dispute and that she views mediation as a positive step forward and welcomes a prompt and fair resolution. See stories here: http://nyti.ms/ZxE6lx and http://nbcnews.to/WaDAep

EU Enforcing Settlement Agreement against Microsoft

Microsoft was fined over $700 million by the European Commission for failing to offer a choice of browsers in its computer operating system used by some fifteen million people in the EU. This agreement was the result of Microsoft's legal fight over competitive practices with the European Union that was settled in 2009, making a dozen internet browsers available for use in Windows. Apparently, Microsoft dropped the ability for choice during a recent service pack update. "Legally binding commitments reached in antitrust decisions play a very important role in our enforcement policy because they allow for rapid solutions to competition problems," said Joaquín Almunia, Commission Vice President in charge of competition policy. "Of course, such decisions require strict compliance. A failure to comply is a very serious infringement that must be sanctioned accordingly." Microsoft retained outside counsel last year to conduct the investigation and offered to extend the compliance period while cooperating with the EU. The fine comes when Microsoft Internet Explorer's influence is waning globally as competitors like Google Chrome and Mozilla Firefox have become increasingly popular. The European Commission has also been formally investigating Google. VP Almunia reportedly offered Google a settlement last year after finding that it might have abused its dominance in internet search and advertising by giving its own products an advantage over those of others, even while maintaining that it offered neutral results. Google and the EU have been negotiating since then, and a final agreement may not come until later this year, suggesting that the strategy of seeking quick results in antitrust technology cases through settlements instead of lengthy legal battles could be coming undone. See news items here http://usat.ly/15xeZDf and http://nyti.ms/XSAoEP

Join me March 1, 2013 for E-Discovery Conference

I'll be speaking on the following panels at next week's ACEDS annual E-Discovery Conference: What Florida’s Bouts with New E-Discovery Rules Teach Lawyers and Corporations Florida’s first ever rules for discovery of electronically stored information in civil courts just took effect. They caused a sea change in the way the state’s many trial attorneys practice, and have imposed novel burdens on the Florida court system, parties in litigation, visiting litigants, and the multitude of large and small businesses inhabiting the state. The rules have created some efficiencies in civil procedure, but they have also tested the infrastructure of county and circuit courts from Pensacola to Key West. Though Florida is not one of the first to join the E-discovery fray, its legal and corporate diversity, division of rural and metropolitan areas, and abundance of international businesses make it a melting pot that lawyers, rulemakers, and E-discovery professionals nationwide and at the federal level are eying closely. What new liabilities and opportunities have the rules created, and how can you learn from them? Where are lawyers, litigants and judges most vulnerable to the perils of electronic evidence? What tools and services do you need to excel at E-discovery as the volume of your client’s data balloons? How can you navigate the rules to reduce costs? Can mediation by an E-Neutral save money? And how do you protect against E-discovery malpractice? On this panel, legal experts from across the state, including the attorneys who crafted the rules, will give you important lessons gleaned from this unsettled legal terrain. Double-Edged Sword of Social Media-- Boost Your Bottom Line While Avoiding Risk As Facebook hits one billion global users and Twitter approaches a half billion, it’s safe to say that social media is here to stay. Some organizations and law firms have embraced it for the unique marketing and networking avenues it affords, and the business it can drive. Others pass on its benefits because of the clear reputational and legal risks it presents. Social media can open doors to engage stakeholders and potential clients, but it is hard to monitor and even tougher to incorporate into existing information governance frameworks. The stakes are high. When the threat of a lawsuit strikes, it is crucial to know who is saying what, where it is located, and how to preserve and collect it for litigation. How can you use social media to drive business success, while reigning in the dangers it presents? What does an effective employee social media policy look like, and how can you integrate it with compliance policies that are already in place? How do you govern social media in the cloud? What are the best ways to preserve, collect, and produce social media? And how do you decide which methods are best? In this panel, e-discovery and technology experts from top organizations and law firms show you how to use and regulate social media in a way that is safe, effective, and profitable. More about the E-Discovery conference here: http://www.ediscoveryconference.com/panels

The Farmer and the Cowman could be Friends

An Oregon measure just approved by the state senate judiciary committee there encourages malpractice mediation before lawsuits are filed. Both doctors and trial lawyers are actually behind a bill creating a new mediation process for patients injured by medical mistakes. Governor John Kitzhaber, himself a physician, called the agreement “the holy grail of medical and legal politics," something he reportedly never thought he’d live to see. The legislation is touted as a potential benefit to the practice of medicine and thousands of patients. The effort is aimed at reducing medical liability claims, yet puts no restriction on the amount of money a jury can award for medical errors. Critics say it will do nothing for ever-increasing premiums for medical liability insurance. Under the process, injured patients confidentially discuss the error and a possible settlement with the tortfeasor through the assistance of a professional mediator. Participation would be voluntary and the discussions would be inadmissible in court if a lawsuit were eventually filed. Proponents hope this would encourage frank discussion among the parties that could stave off lawsuits. Sponsors claim doctors would have a better opportunity to learn from mistakes and might reduce their ordering of medically unnecessary tests to protect themselves from lawsuits. Oregon lawmakers set a cap of $500,000 on non-economic damages in liability lawsuits in 1987 that the Oregon Supreme Court overturned in 1999. Voters rejected two statewide ballot measures to reimpose caps in 2000 and 2004. The Doctors Company, which insures forty percent of physicians in Oregon, fears higher administrative costs for insurance companies along with higher premiums. Of course, Florida has maintained a mandatory pre-suit screening process in medical malpractice for decades. However, mediation is not a stated option, though underutilized voluntary non-binding arbitration is contemplated following investigation. It is good to see Alternative Dispute Resolution present in a modern debate over medical liability reform, which is always very difficult in producing political consensus. The hope is fewer cases will be litigated and legitimate injuries will be fairly compensated, so that Oregon's health care system as a whole can run more efficiently. The endorsement of the Oregon Medical Association and the Oregon Trial Lawyers Association is certainly an indication that perhaps the Farmer and the Cowman are becoming friends; at least out West. See stories here-- http://bit.ly/VlxO9u and http://stjr.nl/UoQnds

Lawyers, Guns and Mediation

Recently, there has been news of gun violence at mediation. Given the current debate in this country on guns, I felt it appropriate to make a post about these developments. Astronaut Mark Kelly, husband of former Arizona Congresswoman Gabby Giffords, broke news of an Arizona mediation shooting to Congress last week during a Senate Judiciary Committee hearing on gun control. Attorney Mark Hummels was representing the CEO of call center when litigant Arthur Harmon shot and killed Hummels and his client. Harmon, was later found dead by a self-inflicted gunshot wound in shopping center according to Phoenix police. Hummels was president of his local chapter of the Federal Bar Association and covered local and state government as newspaper reporter before attending law school, after which he earned the highest score on the bar exam. Hummels and his client were shot in the lobby following a mediation conference with the shooter. Another victim, unrelated to the mediation, was shot in the hand by a stray bullet outside the office building. A report out of Montana concerns a woman litigant in a lawsuit who pulled a gun on an attorney during mediation. Her request to have a felony assault with a weapon charge dismissed was denied. Prosecutors allege she slammed documents on a table, made a final offer and then pulled out a loaded pistol. A struggle ensued, during which a man was bitten and the gun-toting woman fled, only to be caught minutes later by police. She has been jailed on $1 million bail since the incident. As mediators, we are peacemakers and, of course, encourage non-violent resolution to conflict. No one should have a gun at a voluntary mediation conference, just as there are no guns permitted in our courts. A debate among professional mediators has begun on what feasible safety precautions might be taken for those with a known proclivity for violence. It is now evident this type of violence may arise not only in the family law arena, but in commercial and other areas of litigation, as well. See stories-- http://bit.ly/WChml2 (from ABA with multiple news links) and http://bit.ly/WNacdT

Iraqis protest as Maliki names mediator

Iraq's Prime Minister, Nuri al-Maliki, appointed a senior Shiite figure to talk to demonstrators about demands as tens of thousands of Sunni Muslims protested after Friday prayers in huge rallies against the Shiite premier, amidst renewed sectarian unrest. Sunni outrage has erupted over alleged abuses and discrimination against the minority sect since the fall of Saddam Hussein and the rise of a Shiite majority. Waving former flags from the Hussein era, Sunni clerics, tribal sheiks and young protesters called for reform of anti-terrorism laws they maintain security forces abuse to target Sunnis and unfairly detain prisoners. Maliki has offered concessions, and even freed hundreds of prisoners. But Sunni protesters grew defiant after soldiers opened fire at a Falluja city rally, killing five people a week ago. They want the Iraqi army to leave the area. Evolving protests challenge an already fragile government that splits posts among Shiite, Sunni and ethnic Kurds, who are deadlocked on power sharing. Since American troops pulled out a year ago, sectarian tensions are running high. As such, Maliki appointed a mediator to dialogue with demonstrators about demands such as an amnesty law and easing of so-called de-Baathification campaign against former members of Saddam's outlawed Baath party. The Shiite National Alliance coalition and Sunni-backed Iraqiya had been positive on proposed reforms and report progress. Baghdad is also struggling with a dispute in the autonomous Kurdistan region over oil and land rights, complicating Maliki's attempts to build alliances with Sunni and Kurdish leaders. See full article here-- http://bit.ly/XYagoj

Siegel to Arbitrate over portrayal in 'Queen' documentary

The U.S. District Court in Orlando stayed David Siegel's defamation claim against filmmakers who created "The Queen of Versailles" movie, sending him to arbitration in California. The film documents the Siegel's quest to build the largest home in America while depicting troubles faced by his Westgate time-share business during the recession. Siegel argues the movie makes it appear the business has failed which he says hurt its reputation. Westgate's attorneys claimed proper permissions were not obtained. Apparently, the signature on the releases signed by the mogul's son as his agent binds Westgate to arbitration. The judge, ruling on the basis of a prior evidentiary hearing, rejected each Siegel's testimony as inconsistent, incredible and lacking weight. If it heads to arbitration, the case will likely be presented at the Independent Film and Television Alliance. See articles http://bit.ly/W7cFQ3 and http://thesent.nl/VsxOH0 and the ruling here-- http://bit.ly/VNf5SK

Court requires Citi and UBS to arbitrate auction rate securties case

Brokerages UBS AG and Citigroup must arbitrate a healthcare organization's $234 million auction rate securities claim in a dispute over who a "customer" is for purposes of securities arbitration, according to the U.S. 4th Circuit Court of Appeals. The claimant, Carilion, a network of hospitals in Virginia, was not found a "customer" of either firm under the Financial Industry Regulatory Authority's (FINRA) securities arbitration rules. The court ruled Carilon bought "commodities or services" from a FINRA member that were regulated by industry rules. Carilion's decision to issue auction rate securities was based on advice from UBS and Citi, who were involved in purchasing and reselling them to investors. The Wall Street firms are being blamed for losses when the auction rate securities market failed. The brokerages argued Carilion was not their customer because claims did not "relate to a brokerage account or investment relationship" at either firm. Auction rate securities were highly liquid short-term instruments similar money markets, though with higher returns. The economic crisis prompted Carilion to file for arbitration. The appeals court ruled that though the parties agreed in their contracts with one another to litigate disputes in a New York federal court, this did not did not displace UBS and Citi's arbitration obligation of the claim filed with FINRA. See story at - http://reut.rs/W3n2Fs

DRC implements new CME reporting / renewal process

Beginning this month, in compliance with the Supreme Court of Florida's efforts to reduce paper and the Dispute Resolution Center's (DRC) initiative to provide efficiencies to increase productivity and reduce processing times for applications and renewals, DRC will no longer be mailing out renewal applications. Mediators who are due for renewal will receive an email notification three (3) months prior to renewal that it is time to renew along with a link to complete a generic downloadable renewal form. The forms will then need to be completed, notarized and mailed to the DRC with appropriate renewal fees and the CME Reporting Form. Any changes in information (address, email, phones, etc.) should be indicated at this time as well. See complete details at - http://flcourts.org/gen_public/adr/RenewalChanges2013.shtml For additional information contact DRC at 850-921-2910 or at DRCMail@flcourts.org

What's in a name?

United Nations Mediator Matthew Nimitz is in the Macedonian capital of Skopje to help resolve a longstanding name problem between Macedonia and Greece. Nimitz met with officials and indicated Greece is willing to solve the ongoing dispute with Macedonia. Some 130 countries already recognize Macedonia, but Greece refuses acknowledging that name since it has a region called "Macedonia" within the country. Greece wants Macedonia to change its name. The name has been in debate since the country declared independence in 1991. Macedonia could become an UN member with the name "Former Yugoslav Republic of Macedonia". Macedonia's NATO membership could not be realized due to Athens's veto. The international mediator has reportedly for the first time spotted willingness on both sides to find a solution and a chance to terminate the 20-year name dispute. Greece still insists on introducing a geographical attribute in Macedonia’s name, while Skopje wants a double use of the name – the new name only in its relations with Athens and Republic of Macedonia in its ties with the rest of the world. See http://bit.ly/13oFydK and http://bit.ly/X1xYPS

New Year, New NHL Mediation

The National Hockey League (NHL) and its player's union (NHLPA) caucused separately with a federal mediator this week with looming deadline to reach a deal and possibly salvage a shortened season approaching next week. The two sides met with Deputy Director Scot Beckenbaugh of the Federal Mediation & Conciliation Service (FMCS) in New York, but there's no still no decision on whether the league and union would hold face-to-face negotiations. With half of the 2012-13 regular season already lost to the labor dispute, the NHL has set next Friday as the deal deadline, so that a shortened 48-game season could be feasible. The lockout, which costs almost $20 million a day, began last fall when the previous collective bargaining agreement expired with both sides disagreeing over how to split over $3 billion in revenue. The current dispute, echoing a lockout that erased the entire 2004-05 season, is now focused on the salary cap for the 2013-14 season, the pension fund and length of player contracts. See http://yhoo.it/X6RxZ8 and http://www.nhl.com/ice/news.htm?id=648934