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.