Sanctions for Shaq Skipping and Skyping into Mediation

In a Florida federal case, lawyers were sanctioned for advising their client, former NBA All-Star Shaquille O’Neal, that he didn’t need to personally attend court-ordered mediation. United States District Judge James Cohn of the Southern District of Florida ordered lawyers to pay $13,000 to cover mediation costs for a plaintiff who sued Shaq for allegedly ridiculing his appearance. Plaintiff has a rare genetic disorder that causes tooth loss and facial deformities and has since started an anti-bullying campaign on Facebook that attracted 20,000 members. Shaq posted a photo of himself on Instagram and Twitter stating "smile people" and imitating plaintiff's facial expressions. The lawsuit alleges defamation and invasion of privacy, though Shaq maintains there was no right to privacy because the photos were already on Instagram. He also said his conduct wasn’t so outrageous or extreme as to establish liability. Shaq reportedly attended via Skype and sent a representative to participate on his behalf, due to a television appearance conflict on the day of the mediation. The mediation order stated pursuant to Local Rule 16.2.E, the appearance of counsel and each party or a representative of each party with full authority to enter into a full and complete compromise and settlement is mandatory. The local rule says all parties shall be physically present at the mediation conference “unless excused in writing by the presiding judge.” Counsel argued unsuccessfully that the magistrate judge’s mediation order superseded the local rule, but local rule requires a federal district judge, not a magistrate judge, to excuse a party’s attendance in writing. See stories here-- http://bit.ly/1oLnNos and http://bit.ly/1oLnNos and local rule for court annexed mediation in the Southern District of Florida here-- http://1.usa.gov/1SYVSxx

Congress Considers Arbitration

This month, U.S. Senator Patrick Leahy introduced the Restoring Statutory Rights Act and Interests of the States Act of 2016. If it becomes law, it would exempt from the Federal Arbitration Act (FAA) claims brought by individuals or small businesses arising from violations of federal or state law, the U.S. Constitution or a state constitution. Accordingly, it would permit these claims to proceed in a court of law. Apparently, under the measure, arbitration is still an option if the parties voluntarily choose to arbitrate a dispute after it arises. The bill would also allow federal and state courts to apply their respective jurisdictional laws concerning contract interpretation to find arbitration provisions unconscionable or unenforceable, notwithstanding the FAA. Finally, courts, not arbitrators, would have the essential task of determining and enforcing arbitrability. Congress is also considering the Arbitration Fairness Act of 2015, introduced last year by Senator Al Franken, which would prohibit the use of forced arbitration in consumer and employment disputes. That bill is still in committee, as is a companion bill in the House of Representatives. These Members of Congress take issue with recent majority decisions by the U.S. Supreme Court upholding federal preemption under the FAA. Arbitration remains a worthy alternative to litigation and perhaps these efforts, which pertain mainly to consumer disputes, will stop the backlash that has seemingly taken place and given the whole process a bad name. See more on S. 2506 and S. 1133 here-- www.congress.gov

Determining Arbitrability In Middle District Florida

In a recent decision on a Motion to Compel Arbitration and Stay Proceedings here in the federal Middle District of Florida, Senior Judge John Steele found that while arbitrability is generally a question reserved for the trial court, an arbitrator may interpret the scope of the arbitration agreement if the parties agree and provide for such delegation "clearly and unmistakably" within the agreement. Authorities for this finding included Terminix Int'l Co. v. Palmer Ranch Ltd. P'ship, 432 F.3d 1327, 1332 (11th Cir. 2005) and Norfolk S. Ry. Co. v. Fla. E. Coast Ry., No. 3:13-cv-576-J-34JRK, 2014 WL 757942 (M.D. Fla. Feb. 26, 2014). For this holding, Judge Steele also relied on prior case law from the Supreme Court, as well as the neighboring Southern District:

"[T]he question `who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995). See also Shea v. BBVA Compass Bancshares, Inc., No. 1:12-cv-23324-KMM, 2013 WL 869526 (S.D. Fla. Mar. 7, 2013) (citing Terminix Int'l Co., 432 F.3d at 1332) ("[W]hen parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to the arbitrator").

Here, the court found delegation provisions clearly and unmistakably delegated the determination of arbitrability to the arbitrator. Pursuant to the delegation clauses contained within the arbitration provisions in the instant case, the court returned the determination of whether or not a Telephone Consumer Protection (TCPA) claim is subject to the arbitration agreement to the arbitrator. Plaintiffs agreed to Defendant's request to stay the action pending the determination by the arbitrator, while reserving their right to continue to proceed in court if the arbitrator rules that their TCPA cause of action is not subject to the arbitration agreement. Harrington v. Regions Bank, No. 2:15-cv-522-Ftm-29MRM (M.D. Fla. Jan. 29, 2016) See opinion here-- bit.ly/1SInxD8

Syria Talks Stutter

Just days after Syrian talks in Geneva began to try and end five years of war, the United Nations mediator called for a temporary pause for three weeks due to differences between government and opposition delegations on the priority of humanitarian issues. UN Special Envoy Staffan de Mistura asked for an immediate implementation of a humanitarian initiative before substantive talks started. He stressed both sides insist they are interested in having the political process begin and set February 25th for the next session. Mediator de Mistura made clear he is under no illusions about the difficulties in ending a war that has killed over 250,000 people, sent over 4 million fleeing the country, displaced 6.5 million internally, and put 13.5 million people inside the country in urgent need of humanitarian aid. Reportedly, he expected posturing, walk-outs and disappointments. However, he was not frustrated, but rather determined, yet realistic. He emphasized the UN cannot allow simple procedural matters to "become more important than actually the results of humanitarian situation of the Syrian people who have been waiting for us to deliver this time, not a conference, but something concrete for them.” Talks between the sides are not face-to-face but indirect, with parties caucusing in different rooms. The International Syria Support Group (ISSG) comprising the Arab League, the European Union, the United Nations, and 17 countries including the United States and Russia, laid the groundwork for the Geneva talks at a meeting last fall. Hopefully, there will be progress to report later in the month. See more here from www.un.org-- bit.ly/1QfpGzz