Will Preemption Cause NFL Concussion Opt-outs to Opt-in Settlement?

The NFL maintains the appropriate forum for dealing with player injuries and concussions should be the Collective Bargaining Agreement grievance process, not litigation. For players that opted out of the NFL Concussion Settlement and are continuing their concussion litigation, a motion to dismiss based on preemption may be back on the table when just last week, a federal judge dismissed the prescription drug lawsuit filed by 1,300 former players (Richard Dent et al. v. NFL) on preemption grounds. In that case, the judge decided that the league addressed serious concerns in a serious way-- by imposing duties on the clubs via collective bargaining and placing a long line of health-and-safety duties on the team owners themselves. He went on to state that these benefits may not have been perfect, but they have been uniform across all clubs and not left to the vagaries of state common law. They are backed up by the enforcement power of the union itself and the players' right to enforce these benefits. This does not bode well for the former players that opted out of the settlement thousands of former players made with the National Football League (NFL) over concussion-related suits last summer. The league is reportedly paying $765 million for medical benefits and injury compensation to retired players, as well as funding medical exams, research and litigation expenses. The settlement has been characterized as avoiding litigating thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and team owners reportedly wanted 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. For the lawyers who negotiated the proposed settlement of the NFL's massive concussion litigation, the agreement was groundbreaking. For the lawyers whose clients objected to the settlement, it fails to compensate players suffering from the "industrial disease of football," and it allows the league to escape any determination of whether the league concealed the effects of head injuries from its players. Defending the deal, NFL and the players' attorneys insisted they wanted to help suffering players now, emphasizing difficulty in litigating causation between blows to the head and brain damage known as chronic traumatic encephalopathy (CTE) in these football concussion cases. See more here-- http://bit.ly/1x1uRxX and settlement info here-- https://www.nflconcussionsettlement.com

ADR Section comments on ADR Rules & Policy Proposals

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. The Florida Bar ADR Section Executive Council has filed its comments this week in The Florida Supreme Court. Among the comments by the section is a criticism that there is no provision in the proposed rules which mandates that all communications of all "Other ADR Processes" participants are confidential and privileged, as set forth in the Mediation Confidentiality and Privilege Act. There is nothing that provides that decisions, awards, or evaluations are sealed (as are the "awards" in mandatory non-binding arbitration) and may not be considered by the presiding judge in the event that the dispute proceeds to trial. However, apparently the neutral, without agreement of the parties, can impose confidentiality upon the parties. New rule 16.100 (a)(2) states that the neutral upon commencement of an “Other ADR Process” session shall "inform the participants the extent to which communications may be confidential." The concept of an evidentiary "privilege" as to mediation communications, which is not the same as "confidentiality," is nowhere set forth in the proposals, nor do the proposed rules provide for any sanctions which can be imposed upon any party for breaching "confidentiality." In the proposal, “Other ADR Process” is defined as “[A]ny method used to resolve disputes other than litigation for which no other Supreme Court rules or standards of professional conduct exist.” The comment by the section specifically points out that rules 16.010 (b), 12.760 (d)(2), 1.840 (c)(2) incorrectly define a "Neutral" as an "impartial third party who participates in a dispute at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute." The terms "Neutral" and "Impartial" are not one and the same. The term "Impartial" as defined in Rule 11.080 of the Florida Supreme Court Rules for Court-Appointed Arbitrators “means freedom from favoritism or bias in word, action, and appearance." The same definition appears in Rule 10.330 of the Florida Supreme Court Rules for Certified and Court-Appointed mediators. The term "Neutral" means not being predisposed to the resolution or outcome of the ADR process. As such, the proposed rules need to be drafted so as to comport with the existing Court Rules. No word on whether oral argument will be set in this matter. See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute

BP Settlement Won't Be Undone By S. Ct.

This week, the U.S. Supreme Court denied a petition for certiorari by BP challenging its own 2012 multibillion dollar settlement over the Deepwater Horizon oil spill in the Gulf of Mexico. BP asserted there was fraud in some settlements, while plaintiffs have already been paid over two billion dollars in such claims. BP sought to reopen the lower court-approved settlement it negotiated that allowed the businesses and families impacted to continue to make claims. BP's attempt to halt payments from a settlement fund to reimburse businesses and individuals for losses following the 2010 accident was previously rejected following arguments that the fund administrator had misinterpreted claims and miscalculated payments-- allegedly amounting to fictitious claims. BP maintains decisions made in claims handling exposed the company to losses never contemplated in the settlement. Initially, it was estimated BP would pay roughly $7.8 billion to resolve tens of thousands of claims by businesses and individuals covered by the settlement. The company said it couldn't give a reliable estimate for the total value of the deal, but now believes its liability under the business-claims settlement will exceed $9.7 billion. It is very difficult to reopen a settlement of this type at the appellate level because of extensive negotiation and ultimate approval by BP and its legal team. See new story here-- http://buswk.co/1wXIVJK and ruling here-- http://www.supremecourt.gov/orders/courtorders/120814zor_f2bh.pdf

Cyber-everything

This week featured Cyber Monday and, in case you missed it, last month we had Cyberweek 2014 for "ODR" or online dispute resolution professionals. This interesting virtual conference on the future of alternative dispute resolution was filled with a wealth of webinars, discussion forums and activities. A content rich website, hosted by the ADRhub-Werner Institute at the Creighton University School of Law in Omaha, contains a variety of webinars discussing the integration of technology and dispute resolution. The link below provides access to the activities that took place this year. The organizers encourage visitors to review the entire program to ensure not missing a topic that will meet interests of practitioners considering using technology in dispute resolution processes. Some highlights from the program include presentations entitled: A Panel Discussion on ODR and Ethics, Trends In Conflict Throughout the United States, Technology and ADR, and A Practical Approach to Online Mediation. It seems international mediators are more interested in this form of mediation at this juncture. Travel costs can be incentive enough to mediate online, but the efficiency of the software in being able to access negotiations at the user’s convenience seems to be the main feature touted in this modern method of settling lawsuits. Amounts in controversy will likely drive the ODR process to lower value cases. According to one ODR vendor in the UK, the average duration is one hour in a case that would typically be found in a US county court. Efforts in this area have been around for more than a decade, but I'm still not sure ODR is ready for prime time in larger cases where a human element in decision-making is often intangible without parties participating in person. Archived Cyberweek webinars remain available here-- http://www.adrhub.com/page/cyberweek-2014

NFL Concussion Settlement Questioned

This week, a hearing took place to consider the deal covering thousands of former players that settled with the National Football League (NFL) over concussion-related suits last summer. The league is reportedly paying $765 million for medical benefits and injury compensation to retired players, as well as funding medical exams, research and litigation expenses. The settlement has been characterized as avoiding litigating literally thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and the owners reportedly wanted 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. For the lawyers who negotiated the proposed settlement of the NFL's massive concussion litigation, the agreement was groundbreaking. For the lawyers whose clients objected to the settlement, it fails to compensate players suffering from the "industrial disease of football," and it allows the league to escape any determination of whether the league concealed the effects of head injuries from its players. Now a judge must decide whether the agreement is fair, adequate and reasonable, following a lengthy hearing and request for written briefs before a decision. Defending the deal, NFL and the players' attorneys insisted they wanted to help suffering players now, emphasizing difficulty in litigating causation between blows to the head and brain damage known as chronic traumatic encephalopathy (CTE) in these football concussion cases. See full story here-- http://es.pn/1xVGuVJ and settlement info here-- https://www.nflconcussionsettlement.com

ADR Rules and Policy Proposes Amendments, New Rules

In a major development, The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. According to The Florida Bar News, the Court is inviting all interested persons to comment on the proposed amendments, which appear online at-- http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed on or before December 15, 2014, with a certificate of service verifying that a copy has been served on Committee Chair, Hon. William D. Palmer, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida 32114 or palmerw@flcourts.org, and on staff to the Committee, Susan C. Marvin, Dispute Resolution Center, Florida Supreme Court Building, 500 South Duval Street, Tallahassee, Florida 32399 or marvins@flcourts.org, as well as a separate request for oral argument if commenters wish to participate in oral argument, which may be scheduled on this case. The Committee Chair has until January 5, 2015, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute

Florida Appellate Mediation Procedures Amended

Changes I proposed to the Florida Rules of Appellate Procedure (FRAP) were adopted by the Supreme Court of Florida last week to conform with amendments previously passed and adopted in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. Pursuant to Rule of Judicial Administration 2.140, an oral argument took place last summer and my rule amendment will be effective January 1, 2015. The new language in Florida Rule of Appellate Procedure 9.720 is designed to mirror what has been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there was even a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. See full opinion resulting from FRAP rules committee regular-cycle report here-- http://www.floridasupremecourt.org/decisions/2014/sc14-227.pdf

Orlando Mediator Lawrence Kolin Joins Upchurch Watson White & Max

Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in settling disputes, including serving as a Mediator, Arbitrator, E-Neutral and Special Master. In this role, I'll keep writing on implementing innovative methods of ADR to resolve cases, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on this, my officially ABA listed "Blawg." For more complete information and to schedule, see-- http://www.uww-adr.com/biography/lawrence-h-kolin (800) 863-1462 For the press release regarding my joining this prestigious group of dispute resolvers, see-- http://www.prweb.com/releases/mediator/lawrence_kolin/prweb12283619.htm

Ten Years Later: Florida Mediation Privilege

Success of mediation surely rests with confidentiality, allowing parties to share information, solve issues, build trust, and self-determine whether to resolve a dispute-- all without fear of subsequent disclosure of candid statements shared during the conference. A decade ago, Florida amended Chapter 44, Florida Statutes to create the Mediation Confidentiality and Privilege Act, § 44.401 et seq. Prior to 2004, it was unclear to what extent any privilege applied and when it could be asserted. Under the Act, all mediations, including both court-ordered and other types (like pre-suit and voluntary) were granted confidentiality protections. This made all mediation communications confidential and applies to all mediation participants. The use of mediation has grown significantly in Florida since these protections were codified. The assurance of confidentiality continues to be essential to the integrity and success of mediation. It still encourages candor between the parties and on the part of the mediator. In order for cases to have a chance of settling, the parties must have faith in the fundamental elements of neutrality and confidentiality with limited exceptions to the privilege outlined here-- http://www.flsenate.gov/Laws/Statutes/2014/44.405

E-Discovery Challenges Can Be Overcome Through Mediation

According to a recent article in Law Technology News by William Hamilton, Executive Director of University of Florida's E-Discovery Project, United States Magistrate Judge John Facciola of the District of Columbia-- with whom I've had the honor of serving together with as a panelist at last year's Innovate conference-- presented on coming changes at last week's Fall 2014 Distinguished Lecture. Judge Facciola opined that E-Discovery cooperation is designed to address the problem of asymmetrical attorney competence. Transparency, he said, is consistent with advocacy and competency. Failures often occur when less sophisticated practitioners make incorrect representations to the court and opposing counsel. A lack of transparency can be cover for incomplete preparation and research about the case and the relevant ESI. According to the article, Judge Facciola also said discovery disputes are a cry for help. As such, a new mode of case management that aggressively intercedes early in the case can address electronic discovery challenges. With aggressive case management, failure may be averted according to the judge. Similarly, E-Neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus a confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-Discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. As the wise judge said, “Litigation is about something—and it is not the back up tapes." The judge, who is retiring soon, emphasized that extraordinary costs of ESI litigation are driving small companies and the middle class out of the system, “I did not become a judge to be a hall monitor in a playground where only the rich can play.” The article appears here-- http://bit.ly/1rqJL9b and the full UF presentation is available here-- http://www.law.ufl.edu/academics/institutes/icair

FLABAR ADR Section Spotlights Upcoming Mediation Week

Michelle Jernigan, Editor of The Florida Bar Alternative Dispute Resolution (ADR) Section's News & Tips publication, has put forth a special edition featuring "Stories Mediators Tell" which is a theme of the American Bar Association's Mediation Week. She recounts that Florida's first Citizens Dispute Settlement Program began in 1975. In 1982, the Florida legislature passed a family mediation statute. In 1986, Florida's Supreme Court created the Florida Dispute Resolution Center to research and develop an infrastructure for a statewide ADR program covering all court contested matters. The following year, the Florida legislature passed one of the most comprehensive legislative ADR programs in the entire country. Since 1988, Florida courts have had authority to order parties to mediation. Jernigan writes that ADR procedures have now permanently altered the judicial culture of Florida. Most cases in Florida are voluntarily mediated at least once, and sometimes twice, in lieu of going to trial which has really become the alternative form of dispute resolution. Many parties seek to utilize pre-suit mediation before a lawsuit is even filed. Even litigants with contractual arbitration clauses frequently choose to mediate before submitting the dispute for final disposition to an arbitrator. Mediation Week will be celebrated nationally from October 12-18, 2014. See our ADR Section newsletter for more here: http://bit.ly/1v4cyYt

Upchurch Speaks on Future of Mediation

Alternative Dispute Resolution pioneer John Upchurch of the firm Upchurch Watson White & Max shared his insights on the future of mediation at the Orange County Bar's ADR Committee Luncheon CLE today in Orlando. He was appointed by the Supreme Court of Florida as a charter member of the Supreme Court Committee on Mediation and Arbitration in 1989 and has been resolving disputes ever since. Upchurch opines that injecting creativity into the process could lead to future trends including non-traditional methods in Florida such as Early Neutral Evaluation or even so-called "Night" Baseball Arbitration. He also sees a potential for growth in E-Neutral services with the advent of E-Discovery rules and the need for stronger case management. As for the more typical types of cases, recent case law invalidating caps on medical malpractice damages and the start of new construction projects should lead to more opportunities to employ ADR services in the coming year. Upchurch also commented on the effects of lack of preparation for mediation and down-streaming of cases that need settling, including more follow-up and possibly reconvening parties and counsel. Finally, a discussion was had about the use of Special Magistrates in state court, much like Special Masters in federal court, to streamline discovery and enable quick decisions in a complex case to be made without judicial intervention beyond ratification or rejection of reports and recommendations.

Neutral Arbitrator To Decide Rice Supsension From NFL

In the NFL Players Association (NFLPA) appeal of Ray Rice's indefinite suspension, a neutral arbitrator, rather than someone appointed by National Football League (NFL) Commissioner Roger Goodell, will decide the outcome. Reportedly, the NFLPA executive director, DeMaurice Smith, told the union's executive board that "for the first time ever, the league in the Rice appeal has agreed to a neutral arbitrator" in a personal conduct disciplinary case. Each side submitted candidates for the arbitration and will confer regarding the final choice of the arbitrator. The NFL did say when the appeal was filed that Commissioner Goodell did not intend to personally hear the case. In an email obtained by ESPN, Smith wrote, "This occurs in the context of a difficult set of facts and circumstances [but] it is a positive movement on the overall question of neutral arbitration and a fair personal conduct discipline process." Smith also said the NFLPA will form a commission of diverse experts to assist the union and the league to address "education, prevention, counseling and the discipline process regarding domestic violence and sexual assault." Smith said also that the NFLPA leadership began reaching out to league sponsors to essentially demonstrate that "while we have occasional player issues, that the far majority of players are exactly the type of representatives they want and that we will address the process issues that have caused them concern." See full story here-- http://es.pn/1u8GYap

Arbitrator Goes Postal Union

Nine thousand U.S. Postal Service jobs will become union positions over the next quarter in an arbitration ruling this month that requires post offices use bargaining-unit employees at sites with reduced operating hours. An arbitrator found the USPS violated an agreement with the American Postal Workers Union by using part-time employees instead of union clerks at many slower post offices where hours were reduced in 2012 to save the agency money. Union clerks will now be used at facilities that have cut back hours. Workers filed the grievance against the USPS after a reduction in hours at low-traffic post offices which was a compromise when labor groups and Congressmen pushed back against earlier plans to close them. Prior to this arbitration ruling, the postal service used part-timers to fill the positions. In more than 13,000 offices, less than 350 jobs were held by union clerks. The arbitrator found that the arrangement of remotely managed post offices was not the typical consolidation that the parties have routinely dealt with for decades. See more here-- http://wapo.st/1snvIrX and http://bit.ly/1prhn62 and a copy of the ruling http://www.apwu.org/sites/apwu/files/resource-files/POStPlan_Staffing_090514.pdf

ICANN Registration Restrictions Dispute Resolution Procedure (RRDRP)

The Internet Corporation for Assigned Names and Numbers (ICANN) is the not-for-profit corporation with participants from the world over dedicated to keeping the internet secure, stable and interoperable. It promotes competition and develops policy on unique identifiers. ICANN's RRDRP is intended to address circumstances in which a community-based "New gTLD" Registry Operator deviates from the registration restrictions outlined in its Registry Agreement. This rubric addresses circumstances in which a New gTLD deviates from community-based restrictions. A "community-based" gTLD is one operated for the benefit of a clearly delineated community, restricting the individuals and entities that may register domains in the gTLD. To have standing, the complainant must show that it is an established institution associated with a defined community related to the gTLD string at issue. Complainants must establish that the defined community consists of a restricted population that the gTLD supports. To maintain a successful claim, they must prove that the gTLD operator violated its own community-based restrictions in its registry agreement and that there is a measurable harm to the complainant and the community at issue. Under the RRDRP, parties are encouraged-- but not required-- to participate in informal negotiations or mediation at any time throughout the dispute resolution process. However, the conducting of any such settlement negotiation is not, standing alone, a reason to suspend any deadline under the proceedings. See more information here-- http://bit.ly/1uDKgS3 and http://bit.ly/ZmV0JR

AAA's New Consumer Arbitration Rules

This month, the American Arbitration Association's new Consumer Arbitration Rules became effective. According to AAA, these rules apply when arbitration clauses exist in agreements between individual consumers and businesses where a business has standardized, systematic application of arbitration clauses to its customers and where the terms and conditions of the purchase of standardized, consumable goods or services are non-negotiable or primarily non-negotiable in most or all of its terms, conditions, features, or choices. The product or service must be for personal or household use. The AAA will have discretion to apply the Consumer Arbitration Rules and parties can bring any disputes concerning the application or non-application to the attention of the arbitrator. Businesses are required to submit their consumer arbitration clause to the AAA for review and determination that the clause substantially and materially complies with the due process standards of the AAA’s Consumer Due Process Protocol and the amended Consumer Rules. Businesses will only be included in the registry after the AAA reviews a submitted clause, receives the required fee and determines that it will arbitrate a consumer-related dispute under the clause. The fee has been lowered to $500 for clauses submitted in 2015. AAA will charge an annual renewal fee starting in 2016. Each variation of the business’s arbitration clause must be separately registered. If a business has not registered its consumer clause prior to the filing of a consumer case, the AAA will require that the business register its clause at that time for an additional fee of $250 for an expedited review. Additionally, any subsequent revisions to a currently registered arbitration clause must be resubmitted for review. A fee of $500 will be assessed to review revisions. See more here-- http://bit.ly/Z7rSWJ and http://bit.ly/1lAgU6l

Mediator to Oversee Bank of America Settlement

A law professor and mediator will oversee billions in consumer relief for struggling borrowers as part of the settlement by Bank of America with the federal government. Veteran dispute resolver, Eric Green, will give or withhold credit on mortgage modifications and home loans for low income borrowers. Green served as mediator on various Bank of America cases. In 2011, a federal judge approved a $410 million settlement in a class-action lawsuit involving some 13 million customers affected by debit card overdrafts. That suit claimed the bank processed its debit card transactions from highest to lowest dollar amounts in order to maximize fees customers paid. That settlement sparked criticism because it gave some customers only a fraction of what they paid. Of this new record $16.65 billion settlement, $9.65 billion will be in cash payments to various federal agencies and six states, with the rest in consumer aid. The Department of Justice is restricted from overseeing Green, who will provide quarterly reports. Bank of America has until summer 2018, to provide the relief. Interestingly, Green did not play a role in the terms or in mediating the settlement. If the mediator determines Bank of America has not complied by the deadline, the bank would be required to make cash payments equal to its shortfall. That money would go to organizations that provide housing counseling and foreclosure prevention. See stories here-- http://bit.ly/1smjUBu and http://bit.ly/1qdZJam

Federal Judge Orders Investigation of Arbitral Awards

Interestingly, a federal judge has ordered an investigation into why a municipality consistently loses arbitration cases with officers who are appealing discipline. U.S. District Judge Thelton Henderson opined that an arbitrator's recent decision overturning the termination of a the City of Oakland police officer videotaped tossing a tear gas grenade into a crowd of Occupy Oakland protesters struck at the heart of a reform he oversees. The judge maintains reversal of appropriate discipline at arbitration undermines the very objectives of a court-sanctioned reform effort following a police brutality scandal a decade ago. Reportedly, of the last fifteen arbitration cases by police officers challenging punishments, discipline was revoked in seven cases and reduced in five others, leaving only three wins for the city. Judge Henderson's unusual order apparently gives wide latitude to study every facet of the police department's investigation of officers and how the City Attorney's office prepares arbitration cases. The investigation will include a review into whether the city is getting adequate legal representation for arbitration hearings, whether it is selecting qualified expert witnesses and whether it should change the process for selecting arbitrators. It will also investigate the police department's discipline process, which officers have claimed is biased against them. See story here-- http://bit.ly/1pxuBTo

Met Mediation

The U.S. Federal Mediation and Conciliation Service (FMCS) is facilitating negotiations with the Metropolitan Opera, the American Federation of Musicians, and the American Guild of Musical Artists. In a tactic I have employed successfully in the past, the parties retained an independent financial analyst and highly regarded industry expert, to conduct a confidential study of finances in an effort to help reach new labor agreements. As a result, the Met will further extend the contracts for approximately a week to allow for the completion and evaluation of the report. FMCS, consistent with its practice, will not comment during this period, due to the highly sensitive nature of these discussions and confidentiality of this process. Sometimes using facts and figures within the confines of mediation makes the parties more comfortable with coming to a deal instead of arguing with CPAs in a courtroom. See more here--http://bit.ly/1smUJB2 

FL Supreme Court Limits Senior Judge Mediators

Twenty years ago, the Supreme Court of Florida authorized senior judges to serve as mediators in a new Code of Judicial Conduct, despite concerns about the propriety of a senior judge acting as both a mediator and an assigned senior judge. Last month, following proposed amendments published for comment that would have prohibited dual service, the court again decided to allow senior judges to continue to serve as mediators in light of significant opposition to the proposed prohibition. However, the Court chose to add new limiting provisions, such that Senior judges are now prohibited from serving as a mediator in any case in a judicial circuit where they preside as a judge. Additionally, mediation firms affiliated with judges are required to follow the same prohibitions on advertising and promotion that are imposed on judges. A potential exists that senior judges serving as paid mediators could be seen as exploiting their judicial position or lending the prestige of judicial office to advance the private interests of a judge or a mediation firm with which that judge may associate, or otherwise running afoul of the Code of Conduct. These amendments to the Code of Judicial Conduct, Rules for Certified and Court Appointed Mediators, Florida Rules of Civil Procedure, Rules of Judicial Administration, Rules of Juvenile Procedure, and the Florida Family Law Rules become effective on October 1, 2014 and are seen as additional safeguards to further alleviate the concern that dual service inappropriately creates an advantage in generating mediation business. See full opinion here-- http://www.floridasupremecourt.org/decisions/2014/sc13-1732.pdf

Taking another look at ENE

Mediation and arbitration have been out-of-court dispute resolution options available to Florida litigants for a quarter century. Early Neutral Evaluation or ENE is relatively new and has perhaps not caught on because of lack of court rules and some misconceptions about the process. Early Neutral Evaluation was developed in the United States District Court for the Northern District of California to reduce the expense of litigation for civil litigants. ENE is a hybrid of mediation and arbitration with a goal of helping litigants gain a better understanding of their case. Simply put, a third-party neutral examines the positions of the parties and gives an evaluation of the case. ENE is designed to avoid unrealistic expectations about the probable outcome of a case. ENE ensures time and money are not wasted on litigation and provides a reality check for attorneys and clients. A court-appointed neutral with expertise in the subject matter typically hosts an informal meeting of clients and counsel once the parties request ENE. Sessions generally include and introduction and opening remarks by evaluator, followed by presentations of claims and defenses by counsel. The neutral evaluator then identifies common ground and probes possible stipulations. Upon clarifying key disputed issues, the evaluator can ask if the parties wish to explore settlement before the evaluation is presented and otherwise conduct settlement negotiations if the parties agree to do so. If not, the evaluator explains their assessment of the case, including what may be awarded at trial, what the settlement range of the case should be, and the strengths and weaknesses of each party’s case. The neutral case evaluator has no power to impose settlement and may not force a party to accept any proposed terms. Formal discovery, disclosure and motion practice rights of the litigants are fully preserved. Skilled neutral evaluators can also assist with streamlining case management early, including E-discovery. The confidential evaluation is non-binding and is not shared with the trial court. If no settlement is reached, the case remains in litigation, but likely with the litigants better informed as to the risks, amount of work still necessary to conclude the case and a monetary estimate of the cost of continuing toward trial. I will be working with other full-time neutrals in Florida to explore establishment of a pilot program here. See California rules here-- cand.uscourts.gov/adrlocrules

Apple E-Book Settlement Contingent on Losing Appeal

With trial set to begin before U.S. District Judge Denise Cote in New York next month, Apple has agreed to pay as much as $400 million to settle a lawsuit over accusations that it colluded with publishers to fix the price of e-books. Interestingly, the settlement avoids a second trial and depends on Apple losing an appeal of last year's ruling that it violated anti-trust laws over pricing. That ruling found Apple orchestrated a conspiracy with five publishers to artificially raise e-book prices. Apple has continued to deny that it engaged in any wrongdoing and will not have to pay if it prevails in its appeal, now in the Second Circuit in New York. If approved by the trial judge, the money would go to consumers and Apple will pay legal fees upon losing the appeal. Lawyers representing consumers and 33 states were requesting over $800 million in damages for those negatively impacted by the alleged higher prices for e-books. Publishers accused of colluding with Apple-- Hachette Book Group, HarperCollins Publishers, Penguin, Macmillan and Simon & Schuster already settled in a separate lawsuit. Reportedly, the settlement had previously been announced last month, but the details had not yet been released. See stories here-- http://bbc.in/1mVvS4W and http://abcn.ws/1jyQqB3

Knocking the "A" off ADR

I was recently elected to the Executive Council of the Alternative Dispute Resolution Section of The Florida Bar. At our meeting during the annual convention in Orlando, we discussed the well-known rate of settlements and the fact that less than 2% of cases actually result in trials. Mediation is an established part of the legal system in most populous states and in reality, it is the norm rather than an alternative in resolving disputes. Court-ordered in many instances, but always voluntary as to the self-determined outcome, mediation is simply dispute resolution. I am now involved in producing an ADR Section website and our committee is thinking about shaking up the branding and nomenclature to reflect the maturity of mediation and arbitration. Perhaps ADR in the 21st century is a misnomer? Maybe the "A" in ADR should morph from "alternative" into "accessible" dispute resolution or be dropped entirely? These are some of the issues our profession is grappling with as our bar approaches 100,000 lawyers in Florida. Stay tuned for more on this topic and give your input by joining the ADR Section through the application here: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/3FA42C39F1E41CC38525777400465729/$FILE/ADR%20Application.pdf?OpenElement

GM Mediator Crash Payouts

A plan recently developed for General Motors (GM) by Mediator Kenneth Feinberg, who previously helped develop terms following the 9-11 terror attacks, BP oil spill and multiple shooting incidents, will provide compensation for people killed in accidents caused by faulty ignition switches. Under the guidelines, families will be offered $1 million for the death of the victim, plus $300,000 for the surviving spouse and $300,000 for each of the victim's surviving dependents. Those payments are intended to cover non-economic losses, such as emotional distress. Claimants in the case can choose options for economic losses and look at the victim's previous earnings, benefits, age and household to determine how much should be awarded, including a victim's past, present and assumed future income. The protocol takes effect August 1. GM has launched a website that describes the plan-- www.gmignitioncompensation.com. Victims submitting personal injury claims are being compensated for economic and non-economic losses on a sliding scale, from $500,000 if they were hospitalized for at least 32 days, down to $20,000 for one overnight hospitalization. Eligible claimants who were physically injured in an accident related to the ignition switches but not hospitalized overnight will receive up to $20,000 for medical treatment. The compensation plan also notes that, "because the physical injuries are so vastly different, and have significantly different long-term effects," each major injury claim will be evaluated to establish non-economic loss. Lawsuits against GM claim a death toll of around 60. The U.S. Department of Transportation already fined GM $35 million for the safety issues related to the delayed recall. See news story here-- http://cbsn.ws/1qgPuzY

HP Shareholder Suits Over Autonomy Settle

Today Hewlett-Packard reached a settlement in shareholder lawsuits related to its acquisition of software firm Autonomy. Hp stockholders alleged CEO Meg Whitman didn't do enough to follow up on warning signs about weaknesses in Autonomy's financials and products. Hp claimed it was duped into paying more than $11 billion for Autonomy, because of willfully inflated financial statements at the U.K. firm. Autonomy's former CEO denied accusations of improper accounting. Hp continues to face other lawsuits and regulatory inquiries into the Autonomy deal, but the settlement reportedly demonstrates cleaning up the mess from the acquisition, which contributed to a huge write down and shake-up of Its board. See full story here-- http://bit.ly/1pFMmlo

Judge Lucy Koh Questions Tech Class Settlement

Major technology companies recently agreed to settle a class-action lawsuit in which 64,000 employees accused them of conspiring not to recruit each other's workers, suppressing compensation. The case alleged an inner circle of Silicon Valley executives communicated during a period when the interoperability of companies' products was often discussed. Embarrassing emails between company executives surfacing during E-discovery played a role in the settlement, with four tech companies agreeing to pay plaintiffs $324.5 million. Plaintiffs had planned to ask for about $3 billion in damages at trial, which could have been trebled under antitrust law. Last week, Judge Koh told plaintiffs during a hearing that they had leverage going into trial against the defendants, given the strength of emails showing former CEOs, such as Apple's Steve Jobs and Google's Eric Schmidt, were planning to enforce their no-poaching agreement. Reportedly, Judge Koh had concerns about whether the amount is really fair to the class and deferred a decision about whether to approve the deal. Though Plaintiffs' attorney said the workers faced serious risks on appeal all the way up, Judge Koh was skeptical the Supreme Court would get involved by further restricting class actions. She has previously approved separate settlements totaling $20 million reached by Disney's Lucasfilm and Pixar units, and Intuit. Apple, Google, Intel and Adobe are paying a higher premium to settle this case than Disney and Intuit did, as calculated by the number of employees from each company in the class. Avoiding executives appearing on the witness stand made a settlement attractive. The civil case followed a 2010 Justice Department case on the same matter. Trial was set to begin last month in California. See story here-- http://reut.rs/1q5cB3Y

NCAA Settles Player Likeness Lawsuit

The NCAA has agreed to pay $20 million to settle a class-action lawsuit filed by players whose likenesses were used in EA games developed by the EA Tiburon studio, Electronic Arts Inc.'s Central Florida division. The suit over royalties for videogames produced here was filed in 2009 by Sam Keller. According to the NCAA, the settlement will award money to certain Division I men’s basketball and bowl football student-athletes who attended certain institutions during the years the games were sold. “With the games no longer in production and the plaintiffs settling their claims with EA and the Collegiate Licensing Company, the NCAA viewed a settlement now as an appropriate opportunity to provide complete closure to the video game plaintiffs,” said NCAA Chief Legal Officer Donald Remy. The Keller lawsuit was scheduled to go to trial next year. Courts are expected to approve the agreement. EA Sports already settled a $40 million lawsuit with players and is no longer making its college football game. This news comes during E3, the Electronic Entertainment Expo, where EA is expected to announce its newest lineup of video games today. The NCAA hopes the settlement the will help it in the larger trial getting underway Monday, named for former UCLA star and lead plaintiff Ed O'Bannon. Reportedly, the settlement is historic in that the NCAA will cut a check to players for their on-field performance, though it maintains there is nothing illegal in prohibiting college athletes from earning money off their play while in school. See stories here-- http://bit.ly/TAtl5i and http://on.wsj.com/1uLM7DV

Oral Argument on Appellate Mediation Rule Changes

Oral argument occurred this morning on my proposed changes to the Florida Rules of Appellate Procedure to conform with amendments previously passed and adopted by the Supreme Court of Florida in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. In my experience, attendance at appellate mediation is an important component of whether such cases resolve before briefing and the formalities of the rules can help the parties to anticipate with whom they'll be negotiating and the extent of authority they possess. Many times, trial and appellate counsel appear together, but it is the client that must decide whether to settle at this stage. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there even was a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. The amendments to Florida Rule of Appellate Procedure 9.720 are designed to mirror those that have been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. This is expected to be adopted as part of the regular cycle change. See court documents here-- http://www.floridasupremecourt.org/clerk/comments/2014/index.shtml

Resolving being forgotten in Germany

Germany is considering arbitration on the issue of what information people can force internet search engines to remove from search results. A recent European Union court decision grants consumers the “right to be forgotten." The government could seek to establish “dispute-settlement mechanisms” for consumers who file so-called take-down requests. According to the Interior Ministry there, if search providers introduce automatic deletion, politicians, prominent figures and other persons would be able to hide or even delete reports they find unpleasant. Per the EU court, companies such as Google will have to review such requests on a case-by-case basis. Reportedly, in deciding whether to remove links, companies must balance issues, including how sensitive the information is, and whether there is a public interest. Apparently, the Germans don't plan to create a single mediating authority or to put mediators under state supervision. Negotiations with Google (which has not automated the process) and other providers will begin once the government has finalized its position. See full story here-- http://bloom.bg/1mHqGRb

Apple and Google Bury the Hatchet

Apple and Google settled all smartphone patent litigation between last week, dismissing their cases before the U.S. Court of Appeals for the Federal Circuit. Interestingly, the settlement does not include a typical cross license of respective patents. Steve Jobs once called Android a "stolen product." Apple was unable to slow Android's growth to the majority of new mobile phones sold. In 2010, Motorola preemptively accused Apple of infringing several patents, including one essential to how cellphones operate on a 3G network, while Apple said Motorola violated its patents to certain smartphone features in 2011. U.S. District Judge Richard Posner dismissed that case in 2012 shortly before trial, saying neither company had sufficient evidence to prove its case. Last month, the appeals court gave Apple another chance to win a sales ban against Motorola. Google acquired Motorola Mobility in 2012 and recently agreed to sell its handset business to Lenovo, while keeping the vast majority of the patents. Google may have been encouraged to settle with Apple after regulators in the U.S. and Europe criticized the company for the legal strategy it employed with Motorola's patents. Motorola had pursued injunctions against Apple products based on patents that regulators said it was required to license to Apple. Apple's incentive to keep fighting the Motorola suit may have been diminished by the pending sale to Lenovo. See stories here-- http://on.wsj.com/1pbg90S and http://reut.rs/1p0pjgL and cases 2012-1528 & 2012-1549 at http://www.cafc.uscourts.gov

Consumer Reports Calls for Ban on Forced Arbitration

Calling arbitration an anti-consumer practice that’s becoming all too prevalent, Consumer Reports claims there isn't a single adult in the United States who is not subject to at least one binding mandatory arbitration clause. The magazine, through Consumers Union, its policy and advocacy arm, criticizes the take-it-or-leave-it way of settling disputes. Consumer Reports, which calls itself a public-service organization, says arbitration language is hidden in the fine print of an array of common consumer contracts, including cell phones and credit cards. The editors are disturbed that forced arbitration clauses are making their way into housing, employment, and nursing-home contracts. Their column states that proponents include corporations and the organizations representing arbitrators who frame arbitration as a benefit for consumers that offers a low cost, informal alternative to lawsuits. Forcing consumers to accept arbitration and give up their rights through legalese buried in the fine print raises red flags for consumer advocates, they say. Consumer Reports is backing the Arbitration Fairness Act, pending in Congress, that would ban the use of these forced-arbitration clauses in consumer and employment contracts. See editorial here- http://www.consumerreports.org/cro/news/2014/05/ban-the-use-of-these-forced-arbitration-clauses-in-consumer-and-employment-contracts/index.htm

Alleged Texting During Arbitration

The Orlando firefighters' union is going to battle with the city over a cell phone the deputy fire chief is accused of using to text witnesses during an arbitration hearing. The City of Orlando maintains it doesn't have access to texts, and the union couldn't inspect the phone because it had been lost. Last month, the city claimed the phone was either lost or stolen and filed a police report indicating the phone was sent to city hall through interoffice mail, but it never arrived. Apparently, Sprint, the city's carrier, is unable to provide the content of the messages. In a circuit court complaint filed this week in Orange County, the union said the city provided a list of incoming and outgoing texts from the phone, but 411 of 520 messages were redacted. Firefighters sued the city for failing to turn over text messages from the deputy chief's phone. They are requesting a judge to find the city in violation of Florida's public records law. Union leaders accuse the deputy chief of improperly texting with witnesses during the arbitration. Reportedly, phone numbers belonging to police and firefighters are exempt from the public records law, and city officials say that's why they were redacted. The lawsuit asks that a judge privately review the text information to determine whether city officials were right to redact so much information or have violated Florida's Sunshine Law. It will be interesting to see if this story gains traction like the Orange County Commission's "textgate." The private nature of arbitration hearings will also be in question with the public lawsuit. It remains to be seen whether there was witness tampering or spoliation of electronic evidence that could effect the outcome of the award. See stories here-- http://bit.ly/1fGQX1V and http://bit.ly/SlYrxk and http://bit.ly/1mq5iTk

Mediator Appointed in ACC Case

The possibility of a settlement in the lawsuit between the University of Maryland and the Atlantic Coast Conference will be discussed before a mediator appointed by the Chief Special Superior Court Judge for complex business cases in North Carolina. According to that court’s rules, the mediation is designed to focus the parties’ attention on settlement rather than on trial preparation and to provide a structured opportunity for settlement negotiations to take place. Though reportedly, no meeting date has been finalized yet, an order mandates it must happen before July 10, just days after Maryland officially migrates from the ACC to the Big Ten. The move, announced in the fall of 2012, prompted the ACC to file suit against its charter member school, seeking enforcement of a withdrawal payment worth over $50 million. This year, Maryland counterclaimed, alleging antitrust violations by the ACC in excess of $150 million, stating the ACC violated its own bylaws when attempting to double the exit fee. Louisville is to replace the Terrapins in the ACC. See news stories here-- http://wapo.st/1iwNrld and http://es.pn/1nKtSxH

Tech Firms Settle Recruiting Suit on Eve of Trial

Major technology companies agreed yesterday to settle a class-action lawsuit in which 64,000 employees accused them of conspiring not to recruit each other's workers, suppressing compensation. Terms of the settlement involving Apple, Google, Intel, and Adobe weren't immediately released, but the case reportedly settled for about $325 million. During pretrial proceedings, emails from top executives including Steve Jobs, Sergey Brin and Eric Schmidt surfaced, showing the executives conferred on hiring plans, sometimes through intermediaries. Defendants filed motions seeking to exclude evidence that made Jobs appear as a bully, which was apparently validated in Brin's deposition. Avoiding executives appearing on the witness stand made a settlement attractive. Intel stated it was settling to avoid the risks of litigation, but denied violating any laws or obligations. Adobe elected to settle this matter in order to avoid the uncertainties, cost and distraction of litigation. Apple and Google declined comment. Employees of the companies had been seeking $3 billion in damages. Under antitrust rules, that could have been tripled to $9 billion. The settlement follows settlements reached last year with Lucasfilm, Pixar and Intuit for a combined $20 million. The civil case followed a 2010 Justice Department case on the same matter. Trial was set to begin May 27th before U.S. District Judge Lucy Koh in San Jose, Calif. The case alleged an inner circle of Silicon Valley executives communicated during a period when the interoperability of companies' products was often discussed. Emails between the executives embarrassed executives and their companies. E-discovery played a role in the deal, as Schmidt had emailed about only conferring on agreements not to recruit from other companies verbally, so as not to create a paper trail which could later be sued upon. See story here-- http://on.wsj.com/1mEOu7N

Oral Argument Scheduled on Appellate Mediation Rule Change

Recently, I proposed changes to the Florida Rules of Appellate Procedure to conform with amendments previously passed and adopted by the Supreme Court of Florida in Florida Rule of Civil Procedure 1.720, governing Mediation Procedures. Pursuant to Rule of Judicial Administration 2.140, an oral argument has been scheduled before the court for June 5, 2014. Comments were due by April 1st. I became certified as an appellate mediator in 2011, having been grandfathered in for mediating Florida appellate cases since 2001, before there was a statewide certification. I was trained then by a federal mediator from the U.S. Court of Appeals for the Eleventh Circuit for the Fifth District Court of Appeal's pilot program. Mediation works in about a third of cases on appeal. There are real results that can benefit parties who have already tried their dispute. The amendments to Florida Rule of Appellate Procedure 9.720 are designed to mirror those that have been in effect for mediation of trial court level cases since 2011. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. The proposed amendments bring the same requirements to appellate mediation. See the new rule subdivision language and full three-year cycle report of the Appellate Rules Standing Committee here: http://www.floridasupremecourt.org/clerk/comments/2014/14-227_020314_Petition.pdf

Bogus Arbitrator Credentials Call Awards Into Question

Some forty Wall Street securities arbitration cases dating back more than fifteen years may be compromised because an arbitrator allegedly lied about being a lawyer. FINRA, the Financial Industry Regulatory Authority that runs a mandatory arbitration forum where brokerages and investors resolve their disputes, removed the arbitrator who said he was a lawyer and a member of the bar in several states, when he was not. The former FINRA panelist claimed he was a "lawyer" (putting the word in quotes himself), but admits he was never licensed in Florida or New York, though he maintains California's bar must have lost his records. FINRA has reportedly been trying to improve perceptions of fairness to investors in its arbitration system. It also recently bolstered measures to police its arbitrators. Nonetheless, this news is likely to be more ammunition for mandatory arbitration clause critics. This revelation raises questions about whether the parties might attempt to overturn those decisions. It is unclear whether an arbitrator's fraudulent misrepresentations could give rise to new hearings. Apparently, a lawyer by the same name has informed the state bar association and the California attorney general's office about the matter, in the event the arbitrator appropriated a background other than his own. See story here-- http://reut.rs/1jAuv9S

U.S. Supreme Court Ends Delaware Chancery Arbitration Program

This week, the U.S. Supreme Court denied cert in a case regarding a Delaware arbitration program where sitting judges heard corporate disputes in secret. The Court declined to review lower court decisions holding the program unconstitutional on First Amendment grounds because proceedings weren't open to the public. The confidential arbitration program was adopted in 2009 to further the state's business-friendly reputation. Companies often choose to incorporate in Delaware because of its favorable corporate legal climate. Businesses like arbitration because it can be faster and less expensive than court and takes place behind closed doors. The Delaware program was run through the state's Court of Chancery, where judges are known for their expertise in corporate disputes. Judges presided over the proceedings instead of private arbitrators, so long as a corporate litigants were willing to pay a $12,000 filing fee and $6,000 a day in arbitration costs. Business groups supporting the program reportedly said confidentiality was a time-honored and common sense aspect of arbitration that allowed companies to protect trade secrets and sensitive financial information. Critics said corporations shouldn't be able to pay for the services of a judge in secret. The Delaware Coalition for Open Government, a public-interest group, sued to challenge the program, saying that the public should have access to the arbitrations because they essentially were civil-court proceedings, conducted in a state courthouse with state resources. Last year, the U.S. Court of Appeals for the Third Circuit held allowing access to the proceedings would give stockholders and the public a better understanding of how the state resolves business disputes. Although the lower court rulings didn’t preclude Delaware judges from conducting public arbitrations, the decisions effectively put a halt to the program. See full reports here-- http://on.wsj.com/Qc5OpT and http://buswk.co/NPeNv6

Arbitration Award for Queen of Versailles

Jacqueline Siegel, Orlando's Queen of Versailles, is free to pursue dreams of reality television after an arbitrator recently ruled against a filmmaker who claimed the Siegels signed away rights to their life story. The independent documentary film entitled "The Queen of Versailles" was a hit of the film festival circuit, including a Directing Award at the 2012 Sundance Film Festival. However, Siegel's victory comes with a bill for $750,000 in legal fees incurred by the filmmaker and her husband, in connection with a separate lawsuit. David Siegel's time-share company, Westgate Resorts, sued the couple for defamation and lost. An arbitrator in that case said he did not find any of the content in the movie to be false. The film was hailed as one of the best documentaries of the Great Recession and detailed the Siegels' quest to build the biggest home in America. Court documents claimed the couples' life-story rights were valued at $50 million. Reportedly, the victory might lead to a reality television show. David Siegel claims the couple is in negotiations with several networks. The filmmaker had argued the couple signed away rights to their life story as part of the filming release. The arbitrator apparently ruled differently, saying the life story releases were invalid and unenforceable. Attorneys for the filmmakers maintain their victory in the defamation suit was a triumph for First Amendment rights. See full story here-- http://bit.ly/PMdcbc

Supreme Court Defers to Arbitrators in International Arbitration

Last week, in a 7-2 decision, the U.S. Supreme Court held that arbitrators should decide whether a precondition to arbitration has been satisfied, and courts should only review their interpretation with considerable deference. In reaching this conclusion, the majority interpreted a bilateral investment treaty as if it were an ordinary contract, where the language of the contract is silent and courts must decide the parties’ intentions. A provision requiring disputes to be submitted to local courts for an eighteen month period before initiating arbitration was not satisfied as a precondition; but arbitrators decided such failure did not impact their arbitral jurisdiction. In affirming a $185 million arbitration award against the Republic of Argentina, the Court reversed the finding of the Court of Appeals for the District Court of Columbia that the arbitration panel lacked jurisdiction over the dispute, finding that the arbitrators, and not a court, properly determined whether the treaty's conditions to arbitration had been satisfied. The Court held that the arbitrators had not “exceeded their powers” in deciding that they had jurisdiction. Courts are to presume that parties intend for procedural issues regarding arbitration to be decided by the arbitrator and for substantive issues to be decided by the courts. Thus, an arbitration panel's determination that it had jurisdiction over the the dispute cannot be disturbed. Justices Roberts and Kennedy dissented, reasoning that there is no express agreement to arbitrate between a host country and an investor. Justice Roberts stated. "It is no trifling matter for a sovereign nation to subject itself to suit by private parties; we do not presume that any country – including our own – takes that step lightly." See decision here-- BG Group PLC v. Republic of Argentina, 572 U.S. __ (2014) http://www.supremecourt.gov/opinions/13pdf/12-138_97be.pdf

Breach of Confidentiality on Facebook Voids Deal

News of Facebook and the court system has been limited to juror misconduct and claimants deleting profiles. However, Florida's Third District Court of Appeal recently threw out an $80,000 age discrimination settlement between a Dade prep school and its former headmaster due to a social media status post. Apparently, the ex-employee through his daughter breached the terms of a confidential settlement agreement when she bragged about the money paying for her summer vacation on Facebook to her 1,200 "friends." The post, seen by current and former students, made its way back to the school’s attorneys, who claimed Plaintiff violated the clear and unambiguous language of the parties’ mediation deal. Plaintiff initially won a Circuit Court ruling to enforce the deal, but an appellate panel overturned that decision last week. Central to the settlement agreement was a detailed confidentiality provision, which provided that the existence and terms were to be kept strictly confidential and that should Plaintiff breach the confidentiality provision, a portion of the settlement proceeds would be disgorged. Plaintiff told his daughter that he was happy with the results, claiming he had to say something because she had suffered during her enrollment at the school and was aware of the mediation. The reviewing court said the Plaintiff's daughter did precisely what the confidentiality agreement was designed to prevent. See article here-- http://hrld.us/1pWtbB9 and court decision here-- http://www.3dca.flcourts.org/Opinions/3D13-1952.rh.pdf

No Waiver of Judicial Review of Fee Arbitration

In a recent decision out of the US Court of Appeals for the Ninth Circuit, a panel ruled that parties cannot contractually eliminate judicial review of arbitral awards under the Federal Arbitration Act (FAA). The underlying dispute concerned attorneys' fees in connection with the settlement of a class action lawsuit. Counsel could not agree on how to divide the legal fees and submitted the dispute to arbitration. Following the issuance of an award that allocated the fees among them, the lawyer that received the most money petitioned a federal district court to confirm the award under the FAA. An attorney who received the second highest amount moved to vacate the award. After the district court granted the petition to confirm and denied the motion to vacate, the decision was appealed. The appellee argued that the appellate court lacked jurisdiction due to an arbitration clause that provided made it both binding and non-appealable. The Ninth Circuit rejected that argument and held that federal court review of arbitration cannot be waived or eliminated by contract. The court found the arbitration language was ambiguous, as it could be understood to preclude review of the merits or interpreted to divest courts of any right to review awards. The court noted that permitting parties to opt out of judicial review of arbitral awards under the FAA would frustrate a minimum level of due process for parties ensured by Congress. See article here- http://bit.ly/Mrw3pv and decision here-- http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/17/11-17718.pdf

Iranian Settlement Negotiations

Talks began today in Vienna regarding final settlement on Tehran's disputed nuclear program. Though the parties have indicated a deal may prove difficult, the Iranian negotiators were reported to have stated that if all sides enter the talks with the political will, positive results may be reached in time. Iran's Supreme Leader Ayatollah Ali Khamenei, however, who has final say in nuclear matters, was pessimistic about the prospects of a long-term deal. U.S. government officials similarly downplayed expectations in what was described as a complicated, difficult and lengthy process. This meeting is the first since the United States, Russia, China, France, Britain and Germany struck an interim accord with Iran last fall to scale back nuclear work in return for some sanctions relief. The issues for the permanent agreement include the level of Iran's ongoing enrichment of uranium, underground enrichment facilities and reactors, and inspection of military complexes where the IAEA suspects activities related to weapons development occurred. A final deal would define the permissible scope of an Iranian nuclear program and resolve concerns that Tehran is seeking the capability to build an atomic bomb. Iran, of course, denies having any such goal and wants the complete removal economic sanctions. See stories here-- http://reut.rs/1mr7muc and http://bbc.in/1gQ2vgj

Syrian Mediation

This week, a second round in the fragile peace talks resumed in Geneva between Syria’s government and opposition representatives. United Nations mediator, Lakhdar Brahimi, has reportedly maintained a cautious style, structuring meetings with opposition delegates of armed groups fighting in Syria, and later with the Assad government. Interestingly, the UN mediator presented both sides with a memorandum ahead of the mediation, proposing four main principles for dialogue: ending the violence and fighting terrorism; forming a transitional governing body; defining the relationship between the government and security services; and starting some form of national reconciliation. This time, Mr. Brahimi has apparently avoided bringing the warring parties together face to face, to avoid some rancorous exchanges that occurred during prior direct meetings. Rather, it is said he desires to keep the best chance of progress on confidence-building measures previously proposed, including cease-fires and prisoner exchanges. Meanwhile, humanitarian agencies have been evacuating civilians trapped for two years in the Old City of Homs and delivering food and medicines to those remaining during an extended cease-fire there. Additionally, the international effort to destroy Syrian chemical weapons has stalled with recent deadlines missed. Later this week, Mr. Brahimi meets Russia's Deputy Minister of Foreign Affairs and US Under Secretary of State for Political Affairs, hopefully having made more progress. See story here-- http://nyti.ms/1fe1xaa

Google Settles EU Antitrust Case

A settlement with European antitrust authorities on a competition case regarding Google’s alleged abuse of search and advertising practices has been announced. Google can now avoid hefty fines as well as any finding of wrongdoing. Google, which has some ninety percent of the European market, was accused of favoring its own products and services in search results. Reportedly, the deal is a culmination of four years of negotiations between Google and the European Union (EU). The settlement remains tentative, as comment from Google’s rivals is sought before making the antitrust decision legally binding later this year. Per the settlement, Google will give greater prominence to competitors for the next five years, including displaying results from three competitors every time Google shows its own results for searches related to products, restaurants and hotels. The settlement also makes it easier for advertisers to move their business to Yahoo or Microsoft. The EU agreement goes further than last year's agreement with the US Federal Trade Commission, which forced only minor concessions. European competitors are now considering whether to appeal to the European Court of Justice on the antitrust agreement. Significantly, the settlement does not require the company to change the algorithm that producing search results, nor does it include expanded web services like cloud data, mapping, email, and e-commerce, that apparently gave the company the dominant position in European internet use. See full story here-- http://nyti.ms/MsYl3k

Settling ESI disputes with Mediators

Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus the confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. For example, though counsel are urged to reach a rational agreement on what must be preserved, taking into account costs and burdens incurred by modifying or suspending document retention systems can be difficult. Implementing even narrowly tailored litigation holds to preserve crucial ESI can be difficult without the assistance of an e-neutral during negotiations. Under the safeguards of a confidential mediation, limited discovery from custodians or other key persons with special knowledge of a company’s computer systems may be particularly useful. Lawyers can then self-determine sources from which relevant information is to be obtained, while the neutral facilitates agreement on the time-frame at issue, search protocols, accessibility of stored information or the cost and burden of restoring inaccessible information. An e-neutral, mediator or special magistrate can also facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature caucuses with experts or IT liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding unpredictable judicial outcomes on IT and ESI. Cooperation under this rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawback agreements or agreed confidentiality orders. If the parties reach an agreement, they may ask the court to include the agreement in their scheduling order.

Superstorm Sandy Mediations Effective

A mediation program to assist New Jersey residents with unresolved insurance claims related to Superstorm Sandy has resulted in over three million dollars for claimants since the program was launched last spring, according to Governor Chris Christie’s administration. New Jersey’s Department of Banking and Insurance has received 764 requests for mediation and 521 mediations have occurred. Some 67 percent of those mediations resulted in a settlement with an average recovery of $16,015. The program handles cases in all of that state’s twenty-one counties. The mediation program allows property owners to submit homeowner, automobile, and commercial property claims to a mediator who will assist in settlement discussions, free of charge. Insurance carriers are paying the cost of the mediator. Policyholders who wish to bring legal representation to the mediation session may hire an attorney at their own expense. Disputed non-flood Sandy-related claims greater than $1,000 that do not include a reasonable suspicion of fraud and are based on policies in force at the time the storm made landfall are eligible for mediation. Residents with unresolved non-flood insurance claims related to Hurricane Sandy can have their cases mediated through the American Arbitration Association. Policyholders are using mediation to resolve claims quickly because New Jersey homeowners and businesses must first settle their insurance claims before they qualify for many federal grant programs. The state's Banking and Insurance Commissioner will reportedly keep the mediation program up and running for as long as residents need it. See more here- http://bit.ly/1cREsbK and http://www.state.nj.us/dobi/index.html

Orange County Commission Textgate Settlement

Following fines arising from a criminal investigation of Orange County's mayor and four commissioners for deleting text messages linked to a paid sick time vote, a civil suit was settled with Citizens for a Greater Orange County. That coalition fought for a referendum opposed by county officials and local tourism interests. In a circuit civil action, the group claimed open government violations when elected officials deleted phone text messages that were public records. During their regular meeting, commissioners were seen texting from this dais just before voting to block the issue from reaching the ballot. Mayor Jacobs and Commissioners Boyd, Brummer, Thompson and Martinez, each agreed to pay a $500 civil fine as a result of the criminal probe, with no admission of wrongdoing. The recent settlement disclosed in the civil case similarly avoids any admission of wrongdoing and was apparently made to avoid added litigation costs. The $90,000 deal reportedly covers the plaintiffs' lawyer, court and record request costs, while the county's outside legal bill in defending the civil case is over $150,000. Last year, Florida's legislature passed a law that prohibits cities from forcing businesses to offer paid sick time. See stories here-- http://bit.ly/1akOZ2n and http://bit.ly/1a465Uz

Christmas at Tiffany's? Not so much.

Arbitrators recently ordered Tiffany & Co. to pay Swatch Group some $449 million in compensation over a contractual dispute administered by the Netherlands Arbitration Institute. The award also required Tiffany to to pay interest, the Swiss watchmaker’s legal fees of $8.8 million, and two-thirds of the cost of arbitration. The penalty reportedly exceeds Tiffany's annual earnings last year. A three-member Dutch arbitration panel ruled in Swatch's favor with one dissenting opinion. The companies formed an alliance in 2007 to develop and distribute of Tiffany brand watches. Despite a twenty-year agreement under which Swatch would create a new company, Tiffany Watch Co. Ltd., to make and sell watches under the Tiffany brand, things ended badly in 2011. Swatch alleged breach of contract, claiming Tiffany was moving too slowly to launch and promote the products. Tiffany filed a counterclaim, blaming Swatch for not getting watches onto the shelves of other retailers. Tiffany's counterclaim was dismissed. See stories here-- http://on.wsj.com/1bRee8W and http://wapo.st/JHwbjQ