No Waiver of Judicial Review of Fee Arbitration

In a recent decision out of the US Court of Appeals for the Ninth Circuit, a panel ruled that parties cannot contractually eliminate judicial review of arbitral awards under the Federal Arbitration Act (FAA). The underlying dispute concerned attorneys' fees in connection with the settlement of a class action lawsuit. Counsel could not agree on how to divide the legal fees and submitted the dispute to arbitration. Following the issuance of an award that allocated the fees among them, the lawyer that received the most money petitioned a federal district court to confirm the award under the FAA. An attorney who received the second highest amount moved to vacate the award. After the district court granted the petition to confirm and denied the motion to vacate, the decision was appealed. The appellee argued that the appellate court lacked jurisdiction due to an arbitration clause that provided made it both binding and non-appealable. The Ninth Circuit rejected that argument and held that federal court review of arbitration cannot be waived or eliminated by contract. The court found the arbitration language was ambiguous, as it could be understood to preclude review of the merits or interpreted to divest courts of any right to review awards. The court noted that permitting parties to opt out of judicial review of arbitral awards under the FAA would frustrate a minimum level of due process for parties ensured by Congress. See article here- http://bit.ly/Mrw3pv and decision here-- http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/17/11-17718.pdf

Iranian Settlement Negotiations

Talks began today in Vienna regarding final settlement on Tehran's disputed nuclear program. Though the parties have indicated a deal may prove difficult, the Iranian negotiators were reported to have stated that if all sides enter the talks with the political will, positive results may be reached in time. Iran's Supreme Leader Ayatollah Ali Khamenei, however, who has final say in nuclear matters, was pessimistic about the prospects of a long-term deal. U.S. government officials similarly downplayed expectations in what was described as a complicated, difficult and lengthy process. This meeting is the first since the United States, Russia, China, France, Britain and Germany struck an interim accord with Iran last fall to scale back nuclear work in return for some sanctions relief. The issues for the permanent agreement include the level of Iran's ongoing enrichment of uranium, underground enrichment facilities and reactors, and inspection of military complexes where the IAEA suspects activities related to weapons development occurred. A final deal would define the permissible scope of an Iranian nuclear program and resolve concerns that Tehran is seeking the capability to build an atomic bomb. Iran, of course, denies having any such goal and wants the complete removal economic sanctions. See stories here-- http://reut.rs/1mr7muc and http://bbc.in/1gQ2vgj

Syrian Mediation

This week, a second round in the fragile peace talks resumed in Geneva between Syria’s government and opposition representatives. United Nations mediator, Lakhdar Brahimi, has reportedly maintained a cautious style, structuring meetings with opposition delegates of armed groups fighting in Syria, and later with the Assad government. Interestingly, the UN mediator presented both sides with a memorandum ahead of the mediation, proposing four main principles for dialogue: ending the violence and fighting terrorism; forming a transitional governing body; defining the relationship between the government and security services; and starting some form of national reconciliation. This time, Mr. Brahimi has apparently avoided bringing the warring parties together face to face, to avoid some rancorous exchanges that occurred during prior direct meetings. Rather, it is said he desires to keep the best chance of progress on confidence-building measures previously proposed, including cease-fires and prisoner exchanges. Meanwhile, humanitarian agencies have been evacuating civilians trapped for two years in the Old City of Homs and delivering food and medicines to those remaining during an extended cease-fire there. Additionally, the international effort to destroy Syrian chemical weapons has stalled with recent deadlines missed. Later this week, Mr. Brahimi meets Russia's Deputy Minister of Foreign Affairs and US Under Secretary of State for Political Affairs, hopefully having made more progress. See story here-- http://nyti.ms/1fe1xaa

Google Settles EU Antitrust Case

A settlement with European antitrust authorities on a competition case regarding Google’s alleged abuse of search and advertising practices has been announced. Google can now avoid hefty fines as well as any finding of wrongdoing. Google, which has some ninety percent of the European market, was accused of favoring its own products and services in search results. Reportedly, the deal is a culmination of four years of negotiations between Google and the European Union (EU). The settlement remains tentative, as comment from Google’s rivals is sought before making the antitrust decision legally binding later this year. Per the settlement, Google will give greater prominence to competitors for the next five years, including displaying results from three competitors every time Google shows its own results for searches related to products, restaurants and hotels. The settlement also makes it easier for advertisers to move their business to Yahoo or Microsoft. The EU agreement goes further than last year's agreement with the US Federal Trade Commission, which forced only minor concessions. European competitors are now considering whether to appeal to the European Court of Justice on the antitrust agreement. Significantly, the settlement does not require the company to change the algorithm that producing search results, nor does it include expanded web services like cloud data, mapping, email, and e-commerce, that apparently gave the company the dominant position in European internet use. See full story here-- http://nyti.ms/MsYl3k

Settling ESI disputes with Mediators

Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus the confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. For example, though counsel are urged to reach a rational agreement on what must be preserved, taking into account costs and burdens incurred by modifying or suspending document retention systems can be difficult. Implementing even narrowly tailored litigation holds to preserve crucial ESI can be difficult without the assistance of an e-neutral during negotiations. Under the safeguards of a confidential mediation, limited discovery from custodians or other key persons with special knowledge of a company’s computer systems may be particularly useful. Lawyers can then self-determine sources from which relevant information is to be obtained, while the neutral facilitates agreement on the time-frame at issue, search protocols, accessibility of stored information or the cost and burden of restoring inaccessible information. An e-neutral, mediator or special magistrate can also facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature caucuses with experts or IT liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding unpredictable judicial outcomes on IT and ESI. Cooperation under this rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawback agreements or agreed confidentiality orders. If the parties reach an agreement, they may ask the court to include the agreement in their scheduling order.

Superstorm Sandy Mediations Effective

A mediation program to assist New Jersey residents with unresolved insurance claims related to Superstorm Sandy has resulted in over three million dollars for claimants since the program was launched last spring, according to Governor Chris Christie’s administration. New Jersey’s Department of Banking and Insurance has received 764 requests for mediation and 521 mediations have occurred. Some 67 percent of those mediations resulted in a settlement with an average recovery of $16,015. The program handles cases in all of that state’s twenty-one counties. The mediation program allows property owners to submit homeowner, automobile, and commercial property claims to a mediator who will assist in settlement discussions, free of charge. Insurance carriers are paying the cost of the mediator. Policyholders who wish to bring legal representation to the mediation session may hire an attorney at their own expense. Disputed non-flood Sandy-related claims greater than $1,000 that do not include a reasonable suspicion of fraud and are based on policies in force at the time the storm made landfall are eligible for mediation. Residents with unresolved non-flood insurance claims related to Hurricane Sandy can have their cases mediated through the American Arbitration Association. Policyholders are using mediation to resolve claims quickly because New Jersey homeowners and businesses must first settle their insurance claims before they qualify for many federal grant programs. The state's Banking and Insurance Commissioner will reportedly keep the mediation program up and running for as long as residents need it. See more here- http://bit.ly/1cREsbK and http://www.state.nj.us/dobi/index.html

Orange County Commission Textgate Settlement

Following fines arising from a criminal investigation of Orange County's mayor and four commissioners for deleting text messages linked to a paid sick time vote, a civil suit was settled with Citizens for a Greater Orange County. That coalition fought for a referendum opposed by county officials and local tourism interests. In a circuit civil action, the group claimed open government violations when elected officials deleted phone text messages that were public records. During their regular meeting, commissioners were seen texting from this dais just before voting to block the issue from reaching the ballot. Mayor Jacobs and Commissioners Boyd, Brummer, Thompson and Martinez, each agreed to pay a $500 civil fine as a result of the criminal probe, with no admission of wrongdoing. The recent settlement disclosed in the civil case similarly avoids any admission of wrongdoing and was apparently made to avoid added litigation costs. The $90,000 deal reportedly covers the plaintiffs' lawyer, court and record request costs, while the county's outside legal bill in defending the civil case is over $150,000. Last year, Florida's legislature passed a law that prohibits cities from forcing businesses to offer paid sick time. See stories here-- http://bit.ly/1akOZ2n and http://bit.ly/1a465Uz