Wednesday, April 30, 2014

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-- and

Friday, April 25, 2014

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--

Wednesday, April 9, 2014

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:

Wednesday, April 2, 2014

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--