NCAA Concussion Case Mediation

Just as the NFL settles its concussion case with former players, the NCAA is reportedly entering a mediation with former Eastern Illinois players on November 1st. Retired federal jurist, Layn Phillips, is expected to be the mediator and is known for helping the NFL and NFLPA reach a recent settlement in that dispute. Plaintiffs are seeking money damages, as well as long-term medical monitoring by the NCAA and stricter concussion guidelines. Since the lawsuit was filed two years ago, the NCAA hired a chief medical officer to address the concussion issue. Attorneys for plaintiffs are still seeking class action certification for the lawsuit potentially affecting thousands of players. The NCAA's case was damaged by discovery of emails and information showing that less than half of NCAA schools require a player to see a physician post-concussion. NCAA chief legal officer, Donald Remy, has stated the association is willing to consider reasonable mediation options that address student-athlete health and safety concerns. The NCAA still faces lawsuits in the O'Bannon licensing case, from Coach Paterno's family, and on appeal regarding investigation of former USC assistant coach Todd McNair. See story here-- http://cbsprt.co/1fzXEQ6 and NCAA site commentary on concussion management-- http://bit.ly/18XKJq9

Detroit Deals by Multiple Mediators?

The mediation of the largest municipal bankruptcy in U.S. history utilizes judges as mediators to negotiate the most difficult disputes in trying to resolve billions in Detroit's bond and pension obligations. Proposed restructuring of obligations sparked outrage from city retirees whose pensions and benefits could be cut drastically. Hon. Gerald Rosen, Chief Judge of the U.S. District Court for the Eastern District of Michigan, was charged with overseeing confidential mediation, along with mediators of Judge Rosen's choosing. Judge Rosen appointed other mediators from the judiciary. Bankruptcy judges often utilize mediators as a way to bring together parties in private who might find it difficult to reach a consensus through a more open court process. The city and dozens of creditors launched negotiations this week in hopes of striking deals that could speed the Detroit bankruptcy case. Almost a hundred lawyers representing city pension funds, unions, retirees, the state and bondholders attended the first joint mediation session at federal court in downtown Detroit. Judge Rosen reportedly urged creditors to “Open your minds to areas where we can reach agreements.” Rosen was joined by his colleagues, including several judges from across the country. Negotiations will continue in the weeks ahead before all parties return to Detroit for additional talks next month. Portland based U.S. Bankruptcy Judge Elizabeth Perris will mediate a dispute between the city and bondholders; U.S. District Judge Wiley Daniel of Colorado was assigned to talks involving retirees; U.S. District Judge Victoria Roberts will handle mediation with unions, including the UAW and the American Federation of State, County and Municipal Employees; and Retired U.S. Bankruptcy Judge David Coar of Illinois will mediate disputes involving the Detroit Economic Growth Corp. and Downtown Development Authority. All agreed the future of the region is at stake. See news item here-- http://bit.ly/1aLDPCv

NFL Helmet Maker Mediation

Last month, before the start of the NFL regular season, thousands of former players settled with the National Football League over concussion-related suits for $765 million. However, the apparent amicable resolution to their case doesn’t mean litigation is over. NFL helmet manufacturer Riddell and former players are continuing talks because the deal doesn’t include Riddell. While those negotiations remain confidential by order of the federal judge to "refrain from publicly discussing the mediation process or disclosing any discussions they may have as part of that process,” the proposed settlement between the NFL and some 4,500 former players awaits court approval and a determination on fees. In a prior order, the presiding judge, Hon. Anita Brody, expressed her belief that "the interests of all parties would be best served by a negotiated resolution of this case. The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football.” Riddell may remain exposed following a state jury verdict this year in Colorado, determining that Riddell failed to adequately warn a former football player about the dangers of concussions, resulting in a $3.1 million damages. In this federal matter, Riddell had argued their case should be heard separately from the case against the NFL, but a motion to sever was never granted before ordering the Riddell defendants into the global mediation. See articles here-- http://bit.ly/1fXmCX8 and http://bit.ly/15hvyFk

Join me next month for It-Lex's Innovate

Technology is outpacing the law. IT-Lex is a Florida not-for-profit organization dedicated to narrowing this gap with entertaining educational experiences. I'll be speaking with nationally known members of the judiciary such as Magistrate Judge John Facciola on cooperation in E-discovery at the first annual conference, Innovate. The Innovate conference will take place on October 17 & 18 in Winter Park, Florida at the brand new Alfond Inn at Rollins College and is designed as an interactive learning experience. Participants are encouraged to email specific questions or comments on our various topics to innovate@it-lex.org. You can email us before or during the conference and presentations, and your participation is a key part of the conference experience. Come join us in introducing new methods and ideas to tackle emerging technology law issues with experts like Ken Withers of The Sedona Conference. See more information here-- http://it-lex.org/innovate/ or the full PDF here- http://it-lex.org/wp-content/uploads/2013/09/Innovate1.pdf

NFL Settles Concussion Claims

Just before the start of the regular season, thousands of former players settled today with the National Football League (NFL) over concussion-related suits. The league will reportedly pay $765 million for medical benefits and injury compensation to retired players, as well as funding medical exams, research and litigation expenses. Former U.S. District Judge, Layn Phillips, mediated the settlement and stated,"Rather than litigate literally thousands of complex individual claims over many years, the parties have reached an agreement that, if approved, will provide relief and support where it is needed at a time when it is most needed." NFL Commissioner Roger Goodell and the owners gave the legal team direction 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. See story here-- http://on.wsj.com/1a2uTM0 and NFL press release http://www.nfl.com/news/story/0ap1000000235494/article/nfl-explayers-reach-settlement-agreement-in-concussion-suit

ADR Bars Fees in Auto Defect Suits

Congress in 1975 set forth a policy to encourage warrantors to establish procedures whereby consumer disputes could be fairly and expeditiously settled through informal dispute settlement mechanisms under the Magnuson-Moss Act. Apparently, this was not successful enough in resolving consumer disputes regarding chronically defective automobiles. Consequently, many states enacted Lemon Law legislation to address perceived problems. Use of Better Business Bureau's (BBB) Auto Line is required prior to filing suit under the Magnuson-Moss Act, but is not a prerequisite to an action under the Lemon Law. A three-judge panel of the Superior Court of New Jersey’s Appellate Division recently ruled in Nissan’s favor, stating consumer claimants were not eligible for attorneys’ fees as a matter of law because they were bound to an alternative dispute resolution process as a term of their warranties. Claimants signed away their rights to pursue civil actions by accepting arbitration decisions. BBB Auto Line requires aggrieved consumers to mediate the claim first, then proceed to arbitration if the mediation process proves unsuccessful, with the consumer given a choice between an impartial arbitrator or a three-person panel. Plaintiffs were sent to Auto Line after first trying to circumvent that forum with civil suits. While successful in getting Nissan to repurchase the defective vehicles, the arbitrator did not award attorneys’ fees-- prompting new suits and an appeal when trial judges dismissed those suits. The appellate panel found that Plaintiffs were not entitled to attorneys’ fees because of their participation in the ADR process and signatures on settlements that waived legal action related to the same claim. Plaintiffs were not bound to accept the informal dispute settlement decision, but neither rejected the award of repurchase in favor of initiating legal action with the hope of collecting attorneys' fees. It was found the absence of an attorneys' fees award neither violates statutes nor offends public policy. See story here http://bit.ly/1aLYWH7 and opinion http://www.judiciary.state.nj.us/opinions/a6034-11a0116-12.pdf

Deen Deal

A discrimination and harassment lawsuit against celebrity cook Paula Deen was dismissed today pursuant to a settlement. Deen lost lucrative endorsements and her Food Network cooking show due to the allegations, while the publication of a highly anticipated cookbook was canceled after she said under oath that she had used racial slurs in the past. Filings in U.S. District Court in Savannah, Georgia revealed dismissal of the lawsuit with prejudice, without any award of costs or fees. The dismissal deal came just after Judge William T. Moore threw out the race discrimination claims by a white plaintiff that had no standing to sue over what she said was poor treatment of black workers. Deen’s own words that ended up causing serious damage to her public image and income. The lawsuit was paid little attention for over a year, until the Plaintiffs' lawyer questioned Deen under oath in, asking if she has ever used the N-word. “Yes, of course,” Deen replied, though she added: “It’s been a very long time.” Within a few days, the Food Network didn’t renew Deen’s contract and yanked her shows off the air. Smithfield Foods, the pork producer that paid Deen as a celebrity endorser, dropped her. Retailers, including Wal-Mart and Target, would no longer sell Deen’s products. Judge Moore issued an order stating he still plans to hear whether the lead Plaintiff attorney should be sanctioned for what Deen’s lawyers called unprofessional conduct in the case designed for embarrassing media exposure. However, a filing by Deen’s attorneys asked the judge to drop their motion for sanctions. Forbes magazine last year ranked Deen as the fourth-highest-earning celebrity cook last year, figuring she had hauled in $17 million. Her company Paula Deen Enterprises generates total annual revenue of nearly $100 million. See stories here-- http://wapo.st/1c1Zoio and http://bit.ly/189fjHr