NFL Claims Admin Audit Power Questioned

A claims administrator implementing the $1 billion NFL concussion litigation settlement is fighting efforts to limit auditing former players’ claims multiple times. Under the terms of the settlement agreement, the firm alleges it is not limited to auditing claims a single time to stop ineligible payments. Reportedly, the settlement agreement and audit rules adopted by the special master allow audit of claims at any time in the process, even after payment. They assert a need to re-evaluate a player and his claim in the audit process whenever questions about the legitimacy of a player’s claimed diagnosis arise. A group of thirty claims brought by the same counsel were put into a second audit. He contended that forcing the claims into multiple rounds of audits goes against the broader settlement agreement and damages his clients’ due process rights. Reasons for re-examination of claims given include switching doctors while claims were being audited, and eventually using a doctor who allegedly gave a high neurocognitive impairment diagnosis to a former player, while continuing to work as a corporate spokesman and host public events. It is feared the settlement program would attract unscrupulous persons if claims were investigated in limited scenarios. The NFL and co-class counsel for the players did not yet comment. See full story here-- https://bit.ly/2TMqxEX and NFL concussion site regarding some 20,532 claimants here-- https://bit.ly/2F7z78Y

Condo ADR Bill in FL Legislature

The Florida Legislature began its session this week and there is already a bill out of drafting relating to alternative dispute resolution (ADR). The act would amend Section 34.01, Florida Statutes, expanding the jurisdiction of county courts to include certain disputes occurring in condominium and cooperative associations. It would also amend Section 718.103, Florida Statutes, defining the term “condominium documents” and Section 718.112 conforming provisions to changes made by the act, requiring that a provision for mandatory mediation, rather than nonbinding arbitration, be included in association bylaws. The language also amends Section 718.117, revising how a unit owner or lienor may contest a plan of termination and amending Section 718.1255, revising the requirements for ADR in condominium associations and providing a form for the written demand an aggrieved party is required to serve on a responding party, as well as providing requirements for the service of a statutory demand to participate in presuit mediation and the response to such service. The legislation would provide requirements for mediators selected by the parties and that parties to equally share the costs of presuit mediation, while authorizing a mediator to require advance payment of fees and costs. Under the law, presuit mediation proceedings would be conducted in accordance with Chapter 44, Florida Statutes, in addition to the Florida Rules of Civil Procedure and authorize a representative from an association’s insurance carrier to attend presuit mediation conferences. The likely effective date would be July 1, 2019. Search for more here-- https://bit.ly/2VKtnHI

NFL Settles with QB Kaepernick

Quarterback Colin Kaepernick and former teammate Eric Reid reached a settlement with the NFL regarding their collusion grievance against the NFL. Both players were alleging league owners colluded to keep them out of the NFL. The decision to kneel during the national anthem made Kaepernick a divisive sports figure. Kaepernick either sat on the bench or kneeled during “The Star-Spangled Banner” before each game in protest for oppression of people of color and ongoing issues with police brutality. The last time Kaepernick played was in 2016 when he went 1-10 with the San Francisco 49ers. However, that litigation appears to be over and Kaepernick’s attorney said he still wants to play in the NFL. In a joint statement last week, the parties explained only that they had engaged in an ongoing dialogue with representatives and as a a result of those discussions, decided to resolve the pending grievances. Of course, the resolution of the matter is subject to a confidentiality agreement and so they state there will be no further comment by any party. Despite this, the media has continued to speculate on the settlement and in one report, Mike Freeman said his sources were speculating that the payout was in the $60-80 million range. Others, like Dan Patrick revealed that a source told him that the settlement could be as low as the $5 million range. Still others like Mike Florio, despite stating most settlements require the parties to keep the details of the deal quiet and confidential, wonders when the details will leak. He goes on to say the NFL’s 32 teams will know the amount, because they’ll each be paying a share and that it takes only one owner to get the number out, making it impossible for the league office to track down the leak. Only time will tell. See news coverage here-- https://bit.ly/2NerBvB and https://bit.ly/2IlOvT8 and https://bit.ly/2TVX2gO and NFL statement-- https://bit.ly/2SbbLmu

Venezuelan Mediation?

This week, Pope Francis reportedly turned down a mediation request from embattled Venezuelan President Nicolas Maduro, indicating conditions aren't ripe for the Vatican to step in and help mediate in the country's dramatic political crisis. Italian newspapers said the socialist leader had written to Francis to ask the Pontiff's help in launching talks with the opposition leader and purported president, Juan Guaidó, whom many including the United States have recognized as legitimate interim president. Guaidó invoked a constitutional provision to assume the presidency three weeks ago, arguing that Maduro’s re-election was a sham. The Argentine-born Pope lamented in reply to Maduro that Venezuelan Bishops were frustrated in their efforts to help defuse political and social tensions in the country, where much of the population lacks adequate food and medicine in a brewing humanitarian crisis. His letter to Maduro indicated Francis felt an inadequate government response to the willingness by church officials to facilitate dialogue in Venezuela. The Pope said all intentions aimed at reconciliation were effectively thwarted since, despite various meetings, there was no follow-up with concrete gestures to implement agreed-upon measures. While Pope Francis favors dialogue, he says only when it places the common good over all other interests and when it is aimed at achieving unity and peace. Despite diplomatic language in the letter, Pope Francis maintains,"'Yes, I can be a mediator, but at my conditions.'" See full news report here-- https://bit.ly/2TLvuuA

SCOTUS - Second Unanimous Arbitration Opinion

This month, the Supreme Court of the United States handed down its second unanimous opinion on arbitration. In New Prime Inc. v. Oliveira, which arose out of an employment dispute between a trucking company and driver, the Court found while the Federal Arbitration Act (FAA) authorizes a court to compel arbitration if parties agreed to arbitrate, the statute also defines the agreements to which it applies. Before a court enforces an agreement to arbitrate, it must first ensure the agreement is one the FAA authorizes courts to enforce. Specifically at issue was whether an exception to the rule in the FAA that obligates courts to enforce arbitration agreements that involve interstate commerce applied. Section I of the FAA exempts contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce from arbitration. The opinion explains while a private agreement may be crystal clear and require arbitration of every question under the sun, that does not necessarily mean the FAA authorizes courts to stay litigation and send the parties to an arbitral forum. In this instance, companies engaged in interstate or foreign transportation should take notice that a trucker’s status as an independent contractor no longer protects the company’s arbitration agreement with him or her under the FAA. Interestingly, despite a conservative majority, the justices chose to interpret the FAA in a way that likely expands worker’s rights. Justice Gorsuch, who authored the opinion, did not deny the vigor of the court’s embrace of a liberal federal policy favoring arbitration agreements. However, in this case, the text seemed clear enough to persuade all of the justices to reject the claim for arbitration. See commentaries here-- https://bit.ly/2Gdqhb2 and https://bit.ly/2CvAxro and opinion here-- https://bit.ly/2CyEpbd

SCOTUS: Arbitrability is for Arbitrator not Court

This week, in what happened to be Justice Kavanaugh's first opinion on the U.S. Supreme Court, an arbitration ruling in a case centered on whether courts can prevent arbitrators from deciding if an issue can be arbitrated at all. Many parties prefer to arbitrate claims because the process is sometimes cheaper and faster than traditional litigation in court which also carries a greater risk of large damages awards by juries. This case arose in a contract dispute between a dental equipment distributor and a manufacturer. Their contract provided that disputes arising from the agreement would be resolved in arbitration, except in instances where one party sought an injunction. The Supreme Court found unanimously in Henry Schein, Inc. v. Archer & White Sales, Inc., that under the Federal Arbitration Act (FAA), a lower court must enforce an arbitration agreement that requires the arbitrator to decide whether a dispute should be decided in arbitration, regardless of the court’s view of the merits of the request for arbitration. When a contract allows arbitrators to decide whether a dispute can be resolved through arbitration, “a court may not override the contract." The holding states the “wholly groundless” exception to arbitrability is inconsistent with the FAA and Court precedent. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. The Supreme Court has long held that the FAA allows the parties to a contract to decide whether an arbitration agreement will extend to those gateway questions, explaining that courts must compel arbitration of the gateway questions whenever the agreement includes “clear and unmistakable evidence” that the parties delegated the decision of those questions to the arbitrator. See stories here-- https://bit.ly/2FqySH1 and https://fxn.ws/2M2c41x and opinion here-- https://bit.ly/2CXAgPw

D.C. Needs a Mediator!

With a government shutdown of undetermined length facing our nation, Washington, D.C. needs a mediator. As a former congressional staffer on Capitol Hill, I've seen this play many times. The parties and the president have drawn their proverbial lines in the sand and have taken intractable positions. Communication is all but ended and no one is facilitating a discussion (at least that the public can see). If our government is to resume operation, an effective mediator is necessary. As the late negotiation guru Roger Fisher observed, when interests are directly opposed, parties should use objective criteria to resolve their differences. Differences here have sparked a battle of wills, destroying any beneficial relationships between those governing. This is not only inefficient, but unlikely to produce agreement. Decisions based on reasonable standards make it easier for the parties to agree-- not to mention helping to preserve decorum and perhaps reminding public officials they serve the American people, which is what they were elected to do. The key may be to develop objective criteria that is both legitimate and practical. Widely accepted findings, professional standards, or legal precedent are possible sources of objective criteria. Testing for objectivity can be as straightforward as asking both sides to be bound by those standards. Rather than agreeing in substance, the parties may create criteria for resolving this crisis. A mediator could resist the typical pressures of politics and facilitate stubborn leaders refusing to be reasonable, shifting the discussion from substantive to procedural criteria in the search for a mutual, self-determined solution. With a different Congress in 2019, things are sure to become even more complicated. Happy New Year!