MLK Mediation

Martin Luther King, Jr.’s heirs are reportedly closer to a settlement in a lawsuit over the ownership of his 1964 Nobel Peace Prize and his famed traveling bible. In Atlanta, a Fulton County Superior Court judge agreed to a mediation timeframe today-- to be completed before this fall-- during a brief hearing with attorneys from both sides. Earlier this year, the judge granted a stay in the case so that the King's daughter could negotiate a deal with her brothers. According to news reports, her attorney said, "...we feel like we have gotten the parties as far as we can get, which is substantial. With a third party-neutral, we can close the gap." Brothers Martin Luther King III and Dexter Scott King are suing sister Bernice King over the ownership of the fifty-year-old Nobel Prize and King Bible, apparently used and signed by President Obama during his second inauguration. Bernice King believes the items are sacred and should remain with the family. Her brothers want to sell them. King’s estate is controlled by his sons who already sought an order for their sister to surrender the items which are in her possession. In a board of directors meeting last year, they voted 2-1 against Bernice King to sell the two valuable artifacts to a private buyer. Martin Luther King, Jr. was assassinated in 1968. His widow, Coretta Scott King, died in 2006. Yolanda King, the eldest King child, died in 2007. Originally, the case was set to go to trial last February. Sibling rivalries are among the toughest challenges for a mediator to solve. There are times when celebrity adult children can navigate their own conflict, but other times require a process affording for the airing of grievances in a non-public forum, such as mediation. See full stories here-- http://on-ajc.com/1LIkt2o and http://bit.ly/1ExGVpg

Arbitrate Deflategate?

This week, NFL Commissioner Roger Goodell issued a four game suspension without pay of quarterback Tom Brady and fined the Super Bowl XLIX-winning New England Patriots $1 million and draft picks for deflating footballs during last year's AFC Championship playoff game where the beat the Indianapolis Colts 45-7. Now there will be an appeal. The NFL Players Association (NFLPA) maintains the NFL's history of inconsistent and arbitrary decisions in disciplinary matters requires that a neutral arbitrator hear an appeal. The league believes Brady's suspension is a fair punishment. An attorney hired by the league to investigate found in a lengthy report that the Patriots used underinflated footballs to their advantage and that Brady probably had at least a general knowledge about it. The report points its finger at equipment assistant and Brady denies being involved. Appeal hearings reportedly begin within 10 days of the league's receipt of an appeal. An attorney for the Patriots published an extensive online rebuttal of the NFL's findings. The NFL claims the quarterback's actions were detrimental to the integrity of the sport. The NFL has not been without controversial decisions of late. Recently, a United States District Judge vacated an arbitration award that upheld Commissioner Goodell’s discipline of Minnesota Vikings running back Adrian Peterson, concluding that Goodell erred in applying a new policy which was not applicable retroactively in that matter. Prior to the vacation of that punishment, an independent and neutral arbitrator, found Goodell abused his discretion when he arbitrarily disciplined running back Ray Rice for a second time. Last month, the Missouri Supreme Court even reviewed the scope of the role of commissioner in arbitration proceedings and found terms designating the commissioner as sole arbitrator unconscionable and unenforceable, being an individual in a position of bias. Accordingly, Goodell is precluded from reviewing, and ruling on the decisions of his employer in arbitration. This aligns with the trend in employing independent and neutral arbitrators to oversee NFL disputes. See more news here-- http://bit.ly/1bTivjm and http://cnn.it/1cXtTfz and at the NFLPA https://www.nflpa.com/news/all-news/nflpa-files-appeal-on-behalf-of-tom-brady

Armstrong Seeks To Vacate Arbitration Award

When cyclist Lance Armstrong finally confessed doping to Oprah Winfrey in 2013, the Dallas sports insurance company that paid him millions of dollars in victory bonuses sued for fraud, asking for its money back. After SCA accused Armstrong and filed suit which was sent to arbitration, Armstrong unsuccessfully tried for an appeal with the Texas Supreme Court to have the case blocked. The dispute with Armstrong actually began over a decade ago, after the former U.S. Postal Service team member won the 2004 Tour de France, the sixth of his seven consecutive victories. Following doping allegations, that case went to arbitration in 2005. SCA Promotions paid Armstrong $7.5 million in 2006. Evidence from that arbitration was used later against him, including testimony from a former teammate and his wife, who said they heard Armstrong admit to using performance-enhancing drugs back in 1996. Armstrong was banned for life by the United States Anti-Doping Agency and stripped of his Tour titles in August 2012. Last February, SCA won a $10 million ruling against him after this case went back to the same arbitration panel that handled the 2005 dispute. The panel said Armstrong used perjury and other wrongful conduct to secure millions of dollars of benefits from SCA. One of the three neutral panelists dissented, noting that the parties entered into a final and binding settlement agreement the last time around. The dissenter apparently believes the majority's sanction is an unwarranted, unlawful reversal of a prior settlement agreement already made and effectuated. Armstrong's attorneys reportedly say the arbitration panel exceeded its authority with its recent ruling. According to news reports, Armstrong's attorneys claim the panel's issuance of sanctions violates well-established Texas public policy favoring settlements and arbitrations for efficient and final resolution of disputes. Court documents show Armstrong and Tailwind Sports, which owned the U.S. Postal Service team for which Armstrong raced, are seeking to vacate the award, insisting it “effectively eviscerated a fully negotiated and binding settlement agreement” reached between Armstrong and SCA Promotions in 2006. The arbitrators have said, “Perjury must never be profitable.” SCA Promotions is now asking a Texas state judge to confirm the arbitration award against Armstrong. It wants the court to enter a $10 million judgment against Armstrong and the former team owner so it may proceed to collect payment. Armstrong’s lawyers maintain the dispute settled voluntarily and finally years earlier. Interestingly, Armstrong previously offered to pay SCA despite the absence of any legal basis for the sanction, and SCA refused to accept. Armstrong is also facing a $100 million fraud lawsuit from the federal government. See full stories here-- http://bit.ly/1F4qXrH and http://usat.ly/1Kqgxm2 and link to motion to vacate pleading here-- https://www.scribd.com/doc/264558280/Lance-Armstrong-Does-Not-Want-to-Pay-SCA-10-Million

Blackbeard Shipwreck Mediation

Nearly 300 years after Blackbeard the Pirate was shipwrecked off the North Carolina coast, a treasure-hunting company is battling that state over "treasure" linked to his vessel. The claims really involve some $14 million in disputed lost revenue and contract violations. Intersal Inc. of Florida, which originally discovered the wreck, filed a petition last month against North Carolina's Department of Cultural Resources. It claims breach of contract in the state's displaying images of artifacts from the flagship Queen Anne's Revenge on websites without a time code stamp or watermark. North Carolina actually owns the ship's contents and has created a tourist industry since its initial discovery in 1996. The legal dispute is pending with the Office of Administrative Hearing and is being sent to mediation next month to avoid a hearing before an administrative law judge. While North Carolina denies the allegations, saying they have no merit, Intersal has issues with rights related to filming the wreck's recovery, as well as study and reproduction of its artifacts. Intersal says the state continues to violate the terms of a 2013 renewal of a 1998 agreement for exclusive media rights, by improperly publishing or improperly permitting the publication of photos and video of the wreck and treasures. Reportedly, wrecks in state waters, such as Blackbeard's ship, belong to a state, even if they are undiscovered. Blackbeard was a notorious sea robber who plagued the shipping lanes of North America and the Caribbean. His ship ran aground in the early 1700s and its remains lie in shallow water about a mile offshore North Carolina. Researchers have been excavating it since the late 1990s and have recovered anchors, cannons and other items. Normally, companies that find such wrecks split any treasures found. In this case, researchers believe that most valuables on board Queen Anne's Revenge were removed before the ship went under which is why a media deal was made. See news stories here-- http://bit.ly/1IjnjLu and http://bit.ly/1Rfsro4 and the educational website-- http://www.qaronline.org/History/TheShipwreck.aspx

Arbitration Fairness Act of 2015

There is a new bill in Congress to amend Title 9 of the United States Code with respect to arbitration over which increasing debate on fairness as a pre-dispute agreement has intensified. The Arbitration Fairness Act of 2015 was introduced by Minnesota Senator Al Franken and Georgia Representative Hank Johnson to eliminate mandatory arbitration clauses in employment, consumer, civil rights and antitrust cases. Companies provide almost all consumer financial products and services under written contracts with such clauses. Arbitration agreements in those contracts often require that parties resolve any subsequent disputes through privately-appointed arbitrators, rather than through the court system. The use of arbitration clauses has increased with recent U.S. Supreme Court decisions supporting corporate enforcement efforts of those agreements. A Consumer Financial Protection Bureau (CFPB) report found that 75% of consumers surveyed did not know if they were subject to an arbitration clause in their credit card contract. Among consumers whose contract included an arbitration clause, fewer than ten percent recognized that they could not sue their credit card issuer in court. It is claimed so-called "forced arbitration" does not provide important procedural guarantees of fairness and due process that are the hallmarks of courts of law. According to Senator Franken’s office, the Arbitration Fairness Act would restore the intent of the original Federal Arbitration Act (FAA) passed by Congress in 1925. When the FAA was passed, it was intended to target commercial arbitration agreements between two companies of generally comparable bargaining power. Over the years, court decisions broadened the reach of the law to include consumer and employment disputes. Under the newly introduced Arbitration Fairness Act of 2015, agreements to arbitration of employment, consumer, civil rights and antitrust disputes could only be made after the dispute has arisen. The Act does not prohibit companies and consumers from going to arbitration to settle a dispute once the dispute has actually taken place. The Act reportedly seeks to ensure transparency in civil litigation by protecting the integrity of Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, among others. The Act would continue to allow pre-dispute mandatory arbitration to continue in business-to-business agreements, and does not apply to collective bargaining agreements. The National Consumer Law Center and the National Association of Consumer Advocates support the new measure. Both proponents and critics of the new act take hard-line stances on the perceived ills or benefits of arbitration, rather than trying to address some criticisms while preserving its benefits. Under the Bill, the applicability of an agreement to arbitrate and the validity and enforceability of an agreement is to be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement. See proposed legislation here-- http://1.usa.gov/1GC7gEr and CFPB report to Congress here-- http://1.usa.gov/1EPG8nT

Court Approves NFL Concussion Settlement

After the first deal was rejected by the trial court just over a year ago, a second deal doing away with a $675 million cap on the fund from which injured former players would draw was reached. Reportedly, the National Football League (NFL) projects 6,000 of some 20,000 retired football players will suffer from dementia or Alzheimer's disease. The approved settlement could payout more than $1 billion. Plaintiffs lawyers not involved in negotiations on the second deal may still appeal over previously expressed concerns about the settlement terms. One attempt to appeal to the U.S. Court of Appeals for the Third Circuit failed last fall, with that court declining to exercise jurisdiction on review of an order granting or denying class certification. The issue on appeal involved preliminary approval of the settlement and granting conditional certification of the class for settlement purposes. Even now that approval of the settlement is final, it could be appealed which would delay benefits to eligible players. Failure to compensate players with chronic traumatic encephalopathy (CTE) is the primary objection to the deal which only compensates for CTE if the player has died. The case faced significant legal hurdles at the start that could have landed the case in arbitration instead of federal court. At the outset, the district judge signaled a preference for settlement of the case, believing that the interests of all parties would be best served by a negotiated resolution. 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 claim they wanted to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The lawsuit accused the league of hiding known risks of concussions for decades to return players to games and protect its image. See more here-- http://bit.ly/1x1uRxX and settlement info here-- http://www.bbc.com/news/world-us-canada-32420600 and http://bit.ly/1bAyhjS and www.nflconcussionsettlement.com

Media Prompts Sunshine Law Mediation

Florida's Governor and cabinet members will mediate their differences next week in Tallahassee with more than a dozen news outlets in a lawsuit accusing officials of violating Florida's Sunshine Law. The mediation postpones a scheduled videotaped deposition of the recently ousted commissioner of the Florida Department of Law Enforcement (FDLE). The sudden dismissal triggered the lawsuit, leading to a series of reforms designed to improve cabinet oversight of state agencies. Former FDLE Commissioner, Gerald Bailey, will likely repeat allegations of political interference by gubernatorial campaign staff and state officials who secretly arranged his ouster. Reportedly, news outlets will seek that high-level state officials post all text messages and emails on the state-run "Project Sunburst" website and to permanently prohibit state officials from using private email accounts to conduct public business. Media editors plan to attend the ironically confidential mediation session in the case on April 22, 2015. A former Florida Supreme Court justice has been brought in to mediate the lawsuit. Additional items up for negotiation are the adoption of policies to keep cabinet proceedings covered by the Sunshine Law, including a return to the recording and broadcasting aides' meetings. The parties will also discuss a prohibition on using liaisons or conduits to communicate about any official business. Finally, the suit seeks to void the appointment of Rick Swearingen, current head of the Florida Department of Law Enforcement, and to conduct a full and open process to appoint a permanent leader. Discussions are to include the formation of an Open Government Commission, similar to the Ethics Commission, with the power to investigate alleged Sunshine Law violations. As Justice Brandeis once quipped, "Sunlight is said to be the best of disinfectants." Read more here-- http://bit.ly/1bbuGsn and http://bit.ly/1b5ElQy and see http://www.flgov.com/sunburst