SCOTUS Stays Cases during Arb Appeals

The U.S. Supreme Court held last week that non-final appeals on arbitrability would stay litigation automatically while decided. This case arose from a class action between the cryptocurrency platform Coinbase and its users. The terms and conditions of the site required users to submit disputes to mandatory arbitration. The named plaintiff sued in federal court, arguing that the arbitration agreement was unenforceable. When the district court agreed, Coinbase appealed that decision to the Ninth Circuit seeking an interlocutory order that would stay the lawsuit until the appeal on arbitration could be heard. In conflict with decisions from other federal appellate courts, the Ninth Circuit rejected that position. In a 5-4 decision, the Supreme Court reversed the Ninth Circuit, finding a right to an interlocutory appeal of a decision not to enforce a mandatory arbitration agreement. The Court noted requiring cases to proceed to trial before hearing such appeals would defeat the purpose of using arbitration in the first place. As a result, an appeal of a district court’s decision to invalidate or enforce and arbitration agreement will be given an automatic stay of the matter pending the appeal. The Court opined it makes sense that absent an automatic stay of district court proceedings, Congress’s decision to afford a right to an interlocutory appeal in Section 16 of the Federal Arbitration Act (FAA) would be largely nullified. Beyond this reasoning, the majority also noted the purposes of arbitration and explained that automatic stays will preserve those objectives of efficiency, reduced litigation cost, and reduced discovery burdens on the parties. See more on Case No. 22-105 here-- https://tinyurl.com/546zn456 and https://tinyurl.com/2r5snu79

Comments Sought for Non-Binding Arb Changes

The Supreme Court of Florida governed Florida Dispute Resolution Center (DRC) Committee on Alternative Dispute Resolution (ADR) Rules and Policy has put forth proposals in Case No. SC2023-0810. The court is now considering amendments to Florida Rule of Civil Procedure 1.820 (Hearing Procedures for Non-Binding Arbitration) that would provide a non-exclusive list of factors for a judge to consider when deciding whether to refer a contested civil action to non-binding arbitration. The amendments would also provide minimum hearing procedures that must be included in an order of referral to non-binding arbitration, absent agreement of the parties, among other things. The court has placed the proposals online and any comments should be filed with the Florida Supreme Court on or before July 31, 2023. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal. If filed by a nonlawyer or a lawyer not licensed to practice, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927 See more here-- https://www.floridasupremecourt.org/Case-Information/Rules-Cases-Proposed-Amendments and https://acis.flcourts.gov/portal/search/case

My Pillow CEO Faces Confirmation of Award

MyPillow CEO Mike Lindell offered to pay $5 million to anyone who could debunk his evidence of interference in the 2020 presidential election. A vocal supporter of the former President, Lindell believed that the 2020 election was stolen, and that he had the evidence to prove it. There was a catch, however, as Lindell required that any such claims be submitted to an arbitrator, and the terms were written quite narrowly–but perhaps not narrowly enough. A computer forensics expert who had apparently voted for Trump twice, took Lindell up on his challenge. He analyzed the supposed evidence and demonstrated there was nothing of any sort of election interference. Lindell's terms required that he show the data had nothing to do with the 2020 presidential election. When Lindell refused to pay, the matter went to arbitration. There, despite Lindell having written the terms to make recovery difficult, the arbitrators sided with the forensic expert, Robert Zeidman, who has now filed in federal court. According to Case Western Reserve University School of Law Professor Jonathan Adler, Lindell may not have learned much about election administration through these travails, but it appears he is about to learn something about the enforceability of arbitration awards. Reportedly, Lindell is also facing multiple defamation suits from Dominion Voting Systems and former Dominion executives, and has been hit with legal sanctions for frivolous legal claims. See more here-- https://tinyurl.com/s4vr4rd2

3M CEO Required at Mediation

A Florida federal judge has ordered 3M CEO Michael Roman to attend mediation to resolve some 260,000 lawsuits alleging its military earplugs caused hearing loss. The judge wants the executive present so that he may "listen and engage directly with the mediators." Reportedly, mediation so far has been "encouraging," but requires 3M senior leadership to push ahead per the judge's order. Attendance of the CEO will ensure that 3M's board will have "firsthand knowledge of the current state of the negotiations" when evaluating any settlement offer. The lawsuits brought by veterans and members of the military allege that 3M's combat arms earplugs were defective. The company utilized bankruptcy of its subsidiary Aearo Technologies LLC, which manufactured the earplugs to try resolving the cases. 3M had opposed efforts to renew global mediation efforts in Florida federal court while Aearo's bankruptcy case is pending. 3M states it continues to believe that Aearo's bankruptcy provides a better option for resolving the earplug claims "more quickly, with more certainty and with more balanced recoveries among claimants." Aearo's bankruptcy strategy has been fiercely opposed by plaintiffs, who said that 3M was merely trying to escape litigation in Florida, following a series of unfavorable legal rulings and trial losses. See story here-- https://money.usnews.com/investing/news/articles/2023-05-22/3m-ceo-must-attend-mediation-in-earplug-litigation-judge-rules

ADR Rules and Policy Needs You!

The Supreme Court of Florida governed Florida Dispute Resolution Center (DRC) Committee on Alternative Dispute Resolution (ADR) Rules and Policy is currently accepting applications for six member appointments to the Committee on ADR Rules and Policy. The Committee on ADR Rules and Policy provides the Supreme Court with recommendations relating to ADR legislation, and all aspects of ADR policy and rules including, but not limited to, ADR practices, mediator certification and renewal requirements, continuing education requirements, and mediation training program requirements. All seats are three year terms that commence on July 1, 2023. Of the appointments, two appointees must be non-lawyer mediators who have been Florida Supreme Court certified for more than five years. The remaining four appointees may be either lawyer mediators or non-lawyer mediators who have been Florida Supreme Court certified for more than five years. All mediator appointees must be Florida Supreme Court certified mediators. All lawyer appointees must be members in good standing of The Florida Bar and have practiced law for a minimum of five years and conducted or attended 15 mediations. Appointments will be made by the Chief Justice of the Supreme Court of Florida. Please see AOSC20-59PDF Download for more information. To be considered for appointment, please submit a letter of interest and current résumé on or before April 25, 2023, to: Florida Dispute Resolution Center Supreme Court Building 500 S. Duval Street Tallahassee, Florida 32399 Fax: (850) 922-9290 mail: DRCmail@flcourts.org

Fox Settlement Shows Remote Mediation Works

Since the advent of the virtual mediation essentially with the rise of remote attendance resulting from the pandemic, lawyers seem skeptical of the effectiveness of this mediation technique. This skepticism persists, even after many polls of over a thousand full-time neutrals revealed that settlement rates remain as before largely the same as in-person cases. As evidenced by employing a mediator colleague of mine from the National Academy of Distinguished Neutrals (NADN.org) floating down the Danube during a high-stakes, eve of trial negotiation in a high profile case with results certain to be impactful, it is possible to achieve resolution by remote attendance. This method is pretty much the default in the state of Florida and around the country and is usually possible despite standing orders that may not specify so in the name of self-determination with agreement of the parties. People are now facile with off the shelf technology like Zoom and are quite used to interacting with others in this medium. Likewise, mediators using this space are in their third year of building rapport without actually being there, not counting prior experience with telephone negotiation, etc. (also used here among as many as 50 calls and was always an option before Covid). Don't underestimate the ability to get things done in short order without sitting down at the same table. But if you must, we still do that too! See more here-- https://tinyurl.com/tfj4bttt and https://tinyurl.com/ybp3zy5j

Non-binding Arb Rule Comments due 5/2!

The Civil Rules Standing Committee of The Florida Bar is proposing changes to Florida Rule of Civil Procedure 1.820 regarding hearing procedures for Non-Binding Arbitration. This informal and expeditious Alternative Dispute Resolution process is being utilized more and more to clear dockets backlogged from Covid, Hurricanes and general lack of trial dates. Judges in many Florida Circuit Courts are referring cases to this process and so some changes are being put out for comment. Among the changes are serving the award on the parties rather than filing with the court under seal. This is likely because many of our 67 counties have no pull down menu for filing under seal and can lead to awards being seen inadvertently by the judicial officer presiding over the case. Another change contemplates maintaining the original exhibits through the end of the case. I'm not sure arbitrators want to become deputy court clerks warehousing records, but parties can agree to do it themselves. Interested persons should send comments to: midavis@floridabar.org before May 2, 2023. See more here-- https://tinyurl.com/58j7xa4t