Facebook mediation agreeement upheld

The brothers Winklevi have found that there must be an end to litigation.

According to the story, a California court ordered the parties to mediate the dispute, and they signed an agreement in which the Winklevosses would give up ConnectU for cash and a share in Facebook stock.

The Winklevosses later tried to pull out of the deal, alleging that Facebook had undervalued its stock, thus rendering the agreement as having been procured fraudulently.

A judge ruled against them and forced the settlement to go through, but the Winklevosses appealed.

U.S. 9th Circuit Court of Appeals Chief Judge Alex Kozinski, ruled against them.

"At some point, litigation must come to an end," Kozinski concluded. "That point has now been reached."

The brothers will not to appeal their case to the U.S. Supreme Court.

http://www.cnn.com/2011/TECH/social.media/06/23/facebook.winklevoss/index.html?hpt=hp_t2

More Judge-directed mediation; this time in NYC

Judge-directed negotiation, is seen by President Obama's administration as offering states a way to curb liability expenses that have sharply increased health care costs nationally. Getting judges involved earlier, more often and much more actively in pushing for settlements, is touted as the crucial ingredient.

In New York, an expanding program started under a federal grant bypasses years of court battles, limiting legal costs while providing injured patients with compensation that is likely to be less than a jury would award but can be paid out years earlier, without lengthy appeals.

This article reports that malpractice costs have been at the center of the debate about health care expenses (and tort reform) for decades, with some states enacting legislation to limit awards. But the lawsuits have been difficult for judges to control, partly because the cases can go on with little judicial involvement for years, pushing up legal expenses and solidifying positions. The judges in this program keep 'em talking...


http://www.nytimes.com/2011/06/13/nyregion/to-curb-malpractice-costs-judges-jump-in-early.html?adxnnl=1&adxnnlx=1308312429-RX2U6WWtghFOsKgCQwpHTg&pagewanted=all

Interesting look at mediation by our neighbors to the north: judge-led mediation

Mediator Louise Otis, who was just awarded the highest legal honor in Quebec, apparently introduced and implemented a voluntary judicial mediation program offering litigants the possibility of meeting with a judge to resolve their civil, commercial or family disputes – claimed to be the first such system at the appellate level in North America.

Says former Judge Otis, "A judge has to apply the law, but a judge mediator can discuss options for solutions with people and this is the difference. I really think that 90 per cent of all conflicts should be resolved through a useful dialogue, constructive dialogue well guided by a private mediator or a judge mediator. If not, our judicial system will lose legitimacy."

She calls it a living laboratory because it is an integrated hybrid system of justice, where mediation and formal adversarial systems stand side by side. Wait-- I thought that's what we have here in Florida?! I suppose the judicial aspect is more formal in Canada, though are judges are capable and often do act to prompt resolution between the parties if at all possible. This is particularly apparent in the Complex Business Litigation Division in Orlando during case management conferences which require attendance of the litigants.

Read more about Montreal's judge-led mediation programs: http://bit.ly/mi8pTI

NFL and Players reach impasse for now

It seems the parties, and mainly the league, are humoring the Magistrate Judge Boylan by merely participating in the court-ordered mediation process, while really holding out for potential leverage in negotiations potentially to be gained by a ruling forthcoming from oral arguments next week. This is a typical tactic seen in "bet the company" type litigation. Surely, an appeals court ruling can change the tide (and likely the season) and will provide either a stimulus for continued talks or the outright victory for one side. However, the lawsuit is still pending before U.S. District Judge Nelson, and the legality of the lockout has essentially become the fight for now, with both sides arguing over whether Judge Nelson has jurisdiction in the case, and over irreparable harm.

http://bit.ly/jYTxhn

http://bit.ly/ko5oCP

Additionally, the league was granted an extension to respond to the players' briefs in the "Tom Brady vs. NFL" antitrust lawsuit. The response was originally due this week, but will instead be pushed to June 6th.

The new date is noteworthy because it is three days after the appellate argument mentioned above, to determine if the lockout should be lifted.

The NFL's brief was filed on May 9, with the players' coming in last Friday. The NFL now has two weeks to craft a response.

http://bit.ly/jlnxoD

MSPRC Complications in Mediated Liability Settlements

Since last fall's new October 1st liability settlement reporting deadline for providers, problems facing institutions and insurance carriers not knowing the amount of a Medicare reimbursement before settlement have become worse. Since Congress passed the Medicare, Medicaid and SCHIP Extension Act (MMSEA), litigants have scrambled to interpret the impact on the resolution of liability claims. Sanctions for non-compliance imposed by Section 111 of the MMSEA include fines of $1,000 per day. This provides an impetus for both the plaintiffs and defendants to actively engage the Centers for Medicare and Medicaid Services (CMS) regarding implementation of this law. When the Medicare Secondary Payer Recovery Contractor (MSPRC) has been notified of a claim, it will issue a “Rights and Responsibilities” (RAR) letter informing the beneficiary of his or her responsibilities to Medicare. Within 65 days from the RAR letter, the MSPRC automatically issues a "Conditional Payment Letter," which contains the amount Medicare paid for medical claims related to the case. However, it is not until after MSPRC receives notice of a settlement, judgment, or other payment that it calculates the final reimbursement amount and issues its “Demand Letter.” Originally, conditional notice was issued when MSPRC learned of a settlement without the plaintiff having notified it. Notifying Medicare of a case early in the litigation process should speed conditional amount information. If MSPRC is notified of settlement, but the beneficiary or representative never received an initial Medicare lien amount, a conditional notice will issue first. This slows the process and can complicate settlements at mediation due to not knowing the true amount of the Final Demand.

For more detailed information on liens, see Medicare's website: http://www.msprc.info

Federal Arbitration Act Preempts State Law Limitations

This week in AT&T MOBILITY LLC v. CONCEPCION ET UX. the U.S. Supreme Court held that the Federal Arbitration Act (FAA) preempts state contract law limitations on the enforceability of arbitration agreements.

Justice Scalia authored a 5-4 opinion on April 27, 2011 in which the Court ruled that California's classification in consumer contracts of collective-arbitration waivers as unconscionable is preempted by the FAA. According to the Court, nothing in the FAA suggests an intent to preserve state rules standing as an obstacle to the accomplishment of the FAA’s objectives. As a result, businesses may continue enforcing individual arbitration agreements in contracts with employees, consumers and others. This opinion upholds enforceability of arbitration provisions and class action waivers in employment and consumer contracts.

The couple who filed a class action against AT&T for various violations of California’s consumer protection statutes challenged arbitration pursuant to a wireless service contract containing express class action waiver. The U.S. District Court and the Ninth Circuit Court of Appeals held that the class action waiver was unconscionable because it was contained within a contract of adhesion, involved small amounts of damages and bilked large numbers of consumers out of small amounts of money. However, the Supreme Court reversed, opining that states may not place conditions upon the enforceability of arbitration.

http://bit.ly/jN8WZV

Business Litigation "Pre-nups" and E-discovery Mediations

Mediators assist clients in pre-suit negotiations involving complex litigation all the time, but the focus at that juncture in a case is usually on damages and avoiding expenses that will be encountered if actual court litigation ensues. Attorneys who understand the importance of limiting downstream litigation costs should consider alternatives to what I call Mutually Assured Destruction, or pushing the nuclear E-Discovery button in a litigation where perhaps the amount in controversy does not justify the great expense of full-blown data discovery of this nature. Litigation "pre-nups" can include an E-discovery component, confidentially resolving issues of scope with binding agreements-- as well as mediation on the substantive issues-- before resorting to actual litigation. Legal authors in this field, Alison O'Neal Skinner and Mary Mack, have recently advocated taking advantage of these processes early in a case and believe a confidential exchange of proposals on how to create a workable E-discovery plan increases the chances of reaching mutual solutions. (http://bit.ly/e1g0tc) So next time you are thinking about/encountering the scorched earth discovery plan, try this approach first!