ArbitrationCase ManagementLitigation

Is Arbitration “Just Like” Litigation? Some Challenges to Conventional Wisdom

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by Andrew Flake I will occasionally hear, including from some very seasoned litigators and trial lawyers, that arbitration is “just like” litigation. Is that really true? I suppose, In the sense that they are both proceedings that call upon a neutral decisionmaker to resolve disputed facts, managing procedural and evidentiary conflicts and applying legal principles, yes. From the same high level of generality, however, we could also say that Olympic downhill skiing is “just like” ice hockey–they are both sports, played in cold weather on frozen water, with a winner and a loser. Somehow, that doesn’t quite ring true. There…
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Case ManagementMediationResolution

Stops along the Way: When the Mediation Discussion Makes Sense

by Andrew Flake More than ever, with case dockets overloaded, our trial judges welcome counsel’s willingness to mediate. Indeed, much more frequently, I see them ordering parties to mediate, and doing so earlier in the litigation process, as part of a standing order or a regular practice. Still, it remains counsel’s responsibility to consider the various ADR options, including mediation. I’d argue doing so, in virtually every dispute, is at least best practice for litigators, if not built in to our duties of thoroughness and preparation. Additionally, I’ve observed the best outcomes when counsel are invested in the process and…
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Case ManagementCross-Border DisputesLitigation

Abogados and Avocados: Section 1782 Nets Early Access to Corporate Records in Mexican Litigation

by Andrew Flake Reminding us of why 28 U.S.C. Section 1782 matters in cross-border litigation, the Eleventh Circuit in a just-published decision affirmed the validity of subpoenas directed at a U.S. company for records, not of the U.S. company, but of multiple affiliates located in Mexico. Here’s the background. Along with two business partners, appellee Gonzalez formed a business in Mexico, Verfruco, to sell avocado pulp and guacamole internationally. He took an 8% ownership interest, and later, when the company established a U.S. subsidiary, took in that entity a 3% ownership interest. From 2007 through 2020, Verfruco’s sales climbed above…
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LitigationTrial

A Utility Player at Trial: The Humble Inference

by Andrew Flake This week, we hold up for praise…the inference. Unassuming and hardworking, inferences reward more careful attention than we give them. The careful reader will recall, for example, that last week’s Eleventh Circuit case turned on an inference — whether it was proper to draw, and therefore whether summary judgment was proper or not. Inferences can determine of our trials as well. Let’s start with meaning. We refer so much to inferences in legal analysis that I think sometimes we lose the nuances. An inference is defined as “a conclusion or opinion that is formed because of known…
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Case ManagementLitigationTrial

11th Circuit Uses Trademark Case to Instruct on Summary Judgment Practice

by Andrew Flake In a trademark case decided just this month, FCOA, LLC v. Foremost Title & Escrow Services LLC, the Eleventh Circuit considered when a case should be decided without a trial, looking at the special case in which both parties, believing they are entitled to judgment, file motions for summary judgment. Faced with such cross-motions, the trial court has three decision paths: [1] granting summary judgment for the plaintiff under the defendant’s best case, [2] granting summary judgment for the defendant under the plaintiff’s best case, or [3] denying both motions for summary judgment and proceeding to trial.…
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Case ManagementLitigationTechnology

Chat GPT and Litigation Technology, Reprised

by Andrew Flake When I considered ChatGPT in last week’s post, musing about how disruptive this next generation of AI might be for the world of litigation and dispute resolution, I may have understated the case. My fundamental view — that the next generation of AI will augment, but not replace, the role we play as litigators in developing strategy, listening empathetically, and thinking creatively — remains the same. And yet…wow! I’m signed up as an early tester, and after some additional time with ChatGPT, I understand now why AI experts, and even the application’s creators, have been surprised at…
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BusinessCase ManagementSocial scienceTechnology

2023: The Arrival of Hands-On AI

by Andrew Flake You may have read that, at the close of the year, artificial intelligence (AI) hit the mainstream. Open AI released a tool, ChatGPT, with some remarkable capabilities. Among other things, it can generate poetry, essays, conduct research, and manipulate vast amounts of data and millions upon millions of examples of human creation into new forms.What do ChatGPT, and similar applications that will undoubtedly follow, portend for the practice of law? What does it portend for litigation? For ADR? It’s too early to say, although looking at disruptive technologies of the relatively recent past, we could safely predict…
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Case ManagementGeorgia lawLitigationResolution

Utilizing the Special Master

by Andrew Flake We’ve read recently, in the highly-charged political context of a dispute between the national records administration and the former president, of the role a special master has played. Because how the court-appointed experts fit into litigation is not always fully understood, it is worth taking a closer look, starting with how a master is appointed. It is the trial court that appoints a special master, which then, subject to the limits set forth in the order of appointment, exercises delegated authority. In federal practice, the special master serves as a utility player, handling non-jury trial matters in…
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ArbitrationLitigationMediationResolution

“Flora-Bama,” “Floribama,” and a Comparative Look at ADR

by Andrew Flake You read certain appellate opinions and just know they were fun to write, and so it is with a trademark dispute, simmering over the past five years, involving a famous bar and an MTV reality television series filmed in Panama City, Florida. A new opinion from the Eleventh Circuit in this case is important in its own right, but this week, I’ll use it more to illuminate and compare some of the different ways we get legal disputes concluded. First, for some background: The plaintiffs are entities that own the Flora-Bama Lounge, a beach bar and music…
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Case ManagementLitigationMediationTechnology

Early Dispute Resolution (EDR): A Recipe for Success in Commercial Mediation

by Andrew Flake When it comes to our favorite dishes, while we may not ourselves be chefs, most of us can at least name the key ingredients. A great sirloin is cut just so, perhaps seasoned with salt and pepper and some olive oil. Fresh sourdough bread requires fermented dough, with yeast, sea salt, and special flour sprinkled on perfectly golden-brown crust. But a list of ingredients is not enough, is it? We also need to know exactly how much olive oil, how much heat, how much time in the oven, how long a dish sits — to prepare a…
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Case ManagementLitigationMediationResolution

An Idea Whose Time Has Come? Considering the Role of Settlement Counsel

by Andrew Flake Invited to an extended family reunion, I visited one of our state parks a few weekends ago. It was a cool and beautiful morning, and for a moment, standing under a bright blue fall sky, taking in the brilliant reds, yellows and oranges of the fall leaves, I resolved to return more often, and wondered why I had not done so already. A similar feeling hit me during a dinner discussion this week. Along with an engaging group of other ADR neutrals, we heard from some colleagues who have been serving for many years as outside settlement…
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ArbitrationCross-Border DisputesLitigationResolution

Under New York Convention, Separate Service of Summons not Required to Confirm Award

by Andrew Flake Certain cases can be useful because of their technical guidance; they address nuts-and-bolts issues. In the international arbitration realm, one of those issues is the process of taking an arbitration award and getting it confirmed, or converted into an enforceable judgment. Considering an issue of first impression, the Second Circuit recently held that under the New York Convention, an application to confirm a foreign arbitration award does not need to be served again, with a summons, in the same manner as an original complaint. Here’s the background: CME, a commodities-trading company, asserted claims in arbitration against Ferrominera,…
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ArbitrationCross-Border DisputesResolution

The Availability of an “Exceeding Powers” Challenge to the International Arbitration Award: 11th Circuit to Revisit Longstanding Precedent

  by Andrew Flake One of the questions that continues to come up in international arbitrations, where they touch U.S. courts, is how Sections 1 and 2 of the Federal Arbitration Act work together. Generally, Section 1 applies to domestic arbitrations — ones between U.S. parties with enforcement here — and Section 2 to non-domestic (or international) arbitrations. Section 2, which implements the New York Convention’s treaty provisions, also draws on Section 1, so long as Section 1 is not inconsistent. And that has been the friction point, because Section 1 covering U.S. arbitrations, and Section 2 covering international arbitrations,…
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BusinessMediationResolution

“Never Put Off Until Tomorrow…” The Importance of the Signed Mediation Agreement

by Andrew Flake I spent a full day recently in virtual mediation. The case was a challenging IP dispute, one with a contentious and emotional history behind it, and even when schedules demanded concluding the full session, counsel and I worked well into the night on the final elements of a deal. After the mediation, both lawyers were available by phone, texting and calling back and forth with their clients and with me, one of them even taking breaks from refereeing a daughter’s school event to provide needed input. We finished just after midnight. I was proud of counsel’s efforts…
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ArbitrationCross-Border Disputes

58 years is a good run: In ZF-Automotive, the Supreme Court Curtails Discovery Options for International Arbitration

by Andrew Flake Visiting for a close friend’s wedding, I had a chance this weekend to walk around the beautiful mountain community of Black Mountain, North Carolina. There’s a little pond there, “Lake Susan,” fed by mountain springs, that a local told me years ago was the neighborhood pool. But swimming has been forbidden for years, as delightful as it looks, so if you didn’t grow up here, you missed the chance. Today, swimming in Lake Susan is just an interesting story. Relegation to story status appears to be the fate of another activity: applying to a federal district court…
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ArbitrationCase Management

AAA’s 2022 Arbitration Rule Revisions: Upgrades to the ADR Operating System

by Andrew Flake Apple held its annual product launch this week, announcing a new iPhone and other updated products with the company’s usual marketing panache. Less heralded, though perhaps more relevant to those of us in the dispute resolution world, was another launch: After a two-year process of internal review, and with copious input from stakeholders, the AAA has released its amended Arbitration Rules and Mediation procedures. revised its commercial arbitration rules. I briefly considered how I might dramatize these changes, à la the late Steve Jobs, but the revisions are largely enhancements, as opposed to major changes or innovations. I…
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ArbitrationGeorgia lawLitigation

On Appeal of FINRA Arbitration Award, Investors Out of Money and Out of Luck

by Andrew Flake Especially on appeal, courts are selective about which facts to include in opinions. For reasons both of style and precedential value, they may omit facts, even ones the lawyers might consider crucial. Sometimes, the omission may be inadvertent: Years ago, as our team prepared for trial, one appellate opinion was bedeviling our legal analysis. It did not fit with all of the other decisions and certainly not with our case theory. So I trekked down to the appellate archives, finding a microfiche machine, and scrolled through the physical case record until I found the trust document being…
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ArbitrationLitigationResolution

Poker, Peru, and Promptness in International Arbitration Challenges

by Andrew Flake In discussing our litigated disputes, we will often borrow phrasing from the world of poker. And it is true that the game, with its mix of tactics in play and chance in the draw, invites some comparison: an opponent is bluffing, someone is playing cards close to the vest, someone else is lowering or raising the stakes. In games of stud poker, someone might have an ace “in the hole,” meaning a card held face down and not revealed until after the betting. Since a high card can dramatically change the game’s outcome, concealing it until the…
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Georgia lawLitigationMediationResolution

Control over Time in Business Mediation

by Andrew Flake When we think about “successful” mediations, it is often about a financial bottom-line: what was demanded; what was paid; what potential jury verdict was avoided. The dollar-recovery can certainly be measured, and the trial exposure, especially in commercial cases, often estimated fairly well. But the concept of success in mediation is actually broader, as anyone who has ever been involved in litigation knows. Control is key, and in addition to the economics of the case, we need to be thinking about other areas of control — control over uncertainty; control over peace of mind; control over business…
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ArbitrationLaw

Healthcare and Arbitration: Facility Admission Agreements and the Regulation of ADR

by Andrew Flake A case that has made its way up and down the Georgia appellate circuit, CL SNF, LLC et al. v. Fountain, has landed on remand, with a reminder about arbitration clause enforceability: In heavily regulated areas, with health care a prime example, regulation and statutes outside of the traditional FAA context may have substantial impact. In Fountain, a nursing-home abuse case, the patient’s guardian signed the admission paperwork, including an agreement on behalf of the patient to arbitrate. Included in that agreement were provisions that “any and all claims or controversies…arising out or relating to” the various…
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ArbitrationBusinessLitigation

Arbitration Clauses: Reconsidering the “Equitable” Relief Carveout

by Andrew Flake When lawyers represent business clients in arbitration, they are often relying upon a contract, and an arbitration clause, they didn’t draft themselves. That may be because they are assisting a first-time client. It may be because of an artificial divide, the view that “the corporate lawyer prepares the agreement, and the litigator handles the dispute.” Or it may be some combination of both. Where it is possible, though, seeking input on the drafting from a litigator experienced in arbitration has some decided benefits. One of them, illustrated by a recent Third Circuit case, is thinking through the…
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ArbitrationLitigation

Supreme Court Roundup: A Slight Course Correction for the S.S. FAA?

by Andrew Flake In sailing, to “tack” is to turn by making a series of small port-to-starboard moves, back and forth, into the wind. In looking at two very recent Supreme Court options dealing with arbitration, both issued within the past month, that term came to mind. Admittedly, with a sailing trip of my own coming up, I have things nautical on the mind, but taking the two opinions together, we might be seeing a bit of a tack, ever so small, against the very stiff and very pro-arbitration breezes in the District Courts. Here’s a quick recap. Ahead of…
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Uncategorized

Mining for Bitcoin or Mining for Iron? Blockchain Applications in Arbitration

by Andrew Flake It’s been a rocky few weeks for Bitcoin and other cryptocurrencies, and a nervous time for their holders. But investing aside, the blockchain, which underpins Bitcoin, is a real and transformative technology, one with implications all the way from authorship and art (think NFT) to authentication and, yes, even arbitration. There are great primers on the blockchain, so I won’t offer one here, but at a really high-level, the blockchain, in theory, can reduce or eliminate the need for elaborate systems of verifying ownership or trust, replacing a central authority like a bank with thousands and thousands…
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Case ManagementLawLitigation

The Emergence of Required Third-Party Funding Disclosure

by Andrew Flake In a standing order entered this week, the Chief Judge of Delaware’s federal District Court has required all parties in cases before him to disclose at least the existence of any third-party funding (3PF), along with the identity of the funder. Although this particular order only applies to cases before Judge Connolly, it is modeled on a Local Rule the District Court in New Jersey adopted last year. Like New Jersey’s Local Rule, the Standing Order requires disclosure of: The identity of the funder(s), including the name, address, and if a legal entity, its placeof formation;Whether the…
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MediationResolutionTechnology

Making the Most of Our Online Mediations

by Andrew Flake After a nearly ten-hour day on Zoom, even after concluding a great settlement, we’re sometimes less than celebratory. The process can be intense, consuming a lot of focus and energy. It leaves us pretty exhausted. And just logging off, unlike a handshake and a meal or drinks afterwards with our client team, doesn’t have the same satisfying finality. Still, the ability to set up and conclude a mediation online, and the nearly universal availability of that option among good mediators, has been a huge positive. Having just wrapped up one of those long mediation days, and with…
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Case ManagementCross-Border DisputesLitigation

Second Circuit: No Inherent Limit on Using Section 1782 Discovery Elsewhere

by Andrew Flake We try to take advantage of great opportunities when they come along; if work takes us to Rome, and we have extra time, we might head to the Colosseum, take a stroll in the Forum, or at least, find some great espresso. In the same way, I find appellate courts will sometimes spend extra time in their opinions to remind readers of important principles, even if not strictly necessary to deciding an argument. The opportunity to explain or clarify a useful area of law is there. Just so with Second Circuit in an opinion last week, Federal…
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BusinessLitigationTechnology

How the (Chocolate) Gets Made: The Georgia Supreme Court’s “Edible Arrangements” Opinion

by Andrew Flake As often as we hear about mediation and its benefits, and they are many, are there disputes that need to be decided in court, whether by judge or jury? Absolutely. At a minimum, some categories of business disputes require, up to a point, litigation and attention from the courts. One of those categories, for specific businesses, is a challenge to the company’s fundamental business model. Those can make compromise difficult, impractical, or both. Another category, for all litigants, is an undecided legal issue. Both of these factors came up in a just-decided Georgia Supreme Court opinion, Edible…
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MediationResolution

Groundhog Day Edition: Considering the Mediation Privilege

by Andrew Flake When that oddest of special occasions rolled around this year, our U.S. Groundhog Day, I decided to incorporate the festivities into a post. What are some of the recurring issues are in mediation, things that come up, in some form, again and again? I landed on the mediation privilege: what exactly it is; whether it is a true privilege; when and how it might apply; whether another party has run afoul of it; and so on. As with “the usual stipulations” in a deposition, parties frequently assume that either that a broad, uniform and universal privilege exists,…
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ArbitrationLitigationResolution

Arbitration Update: Another Effort to Exorcise “Manifest Disregard”

by Andrew Flake One of the classic conventions of the scary movie is a villain or monster’s “last gasp,” a frightening reappearance after what should have been an antagonist’s definitive end. In the arbitration context, we have such a creature in the doctrine of “manifest disregard,” one that parties summon and that continually tries to rise, again and again, only to receive another dose of appellate holy water or garlic. I wrote about the last such banishment, the Court of Appeals Wells opinion, and just recently, at the very end of 2021, our Supreme Court has again weighed in, again…
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LawLitigationResolution

Two Chief Justices, and Why Institutional Independence Matters

  by Andrew Flake Every year, Chief Justice John Roberts prepares a report on the state of the judiciary, frequently with interesting reference to American history. This year, his thematic focus was judicial independence, a topic for which he selected former U.S. President and Chief Justice William Taft. Taft’s branch-spanning leadership gave him a unique perspective that provides a jumping off point for the current Chief Justice. I’ll provide a quick summary here, but also commend the full 2021 report, well-written and important from a policy perspective, to your review. In court, as in arbitration or any institutional decision-making context,…
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ArbitrationCase ManagementLitigationMediation

ADR in the New Year: Seven Hopes, and A Partridge in a Pear Tree

by Andrew Flake A busy lawyer friend grumbled to me recently, with just a hint of bah-humbug, that he hadn’t had nearly enough time to answer all of his holiday mail and take down holiday decorations yet, much less come up with New Year’s resolutions. Ever solution-oriented, I pointed out that he was engaging in the New Year’s Resolutionist’s mistake, putting too much pressure on himself for immediate change. Instead, I suggested he could usefully ask himself what he’d like to be doing by the end of 2022. I don’t know how much he appreciated my unsolicited reassurance and good…
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ArbitrationCross-Border Disputes

Leapfrog Petition Granted: Key International Arbitration Question Back on for Supreme Court Decision

by Andrew Flake Mere days after our last TAOR blog published, wistfully reviewing the dismissal of the Servotronics case, the Supreme Court has decided to take the question up again, this time in a new case involving a subsidiary of German auto-parts maker ZF Group. The key issue is the same as in Servotronics — whether Section 1782 applies to a foreign arbitration proceeding or not — and arises in the Sixth Circuit, which is one of the circuits that have permitted discovery to be taken in support of foreign international arbitrations. Luxshare, which bought a business unit from German…
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ArbitrationCross-Border DisputesLitigation

Hot Cocoa Conversation: A Servotronics Update

by Andrew Flake With the advent of the holiday season come festivities and family events. Inevitably, as you’re contentedly sipping spiced eggnog or hot cocoa, also comes the question from your Uncle Milton: “So what is the deal? Can I take U.S.-style discovery in a private international arbitration or not?” That question, of course, was (not is — more on this below) the very one teed up in the Servotronics case this term by the Supreme Court. So you’re not caught off guard, here’s a quick primer for you on this perennially-popular holiday convesation topic. What is the undecided legal…
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ArbitrationCase Management

Post-Award Filings in Arbitration: Eleventh Circuit Considers Timing Question of First Impression

by Andrew Flake When an arbitration award comes down, if the winning party moves first to confirm it, the challenging party needs to respond directly, rather than simply moving to vacate. In an Eleventh Circuit case of first impression, McLaurin v. Terminix, we see how the pest control company, in failing to understand this distinction, exterminated its own legal defense. In McLaurin , the plaintiffs were two retired teachers in their seventies. Avid “birders,” they purchased their dream home on Dauphin Island in Alabama, intending to watch migrating birds. Unfortuntately, they watched as their house was torn down, having been…
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Cross-Border Disputes

A Foreign Litigant’s Multi-Tool: The ever-ready 28 U.S.C. Section 1782

by Andrew Flake As someone who likes to be prepared, and who also appreciates a good gadget, I’ve always felt more comfortable knowing I have, stored away in some drawer somewhere, a sturdy Swiss-army knife. More recently, i”ve replaced it with one of those 30-in-1 multitools, the one that fold out into an array of implements: a small saw, scissors, a screwdriver, a set of pliers, and on to more esoteric implements like the awl — for that unexpected scenario in which I’m called upon to punch a hole through cowhide. The need hasn’t arisen, but it’s reassuring to know…
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ArbitrationCross-Border Disputes

What Would Oliver Cromwell Do? My GAR Live Discussion on Challenging the Arbitrator

by Andrew Flake I recently had a chance to serve, with some very distinguished colleagues, on a GAR Live panel. Along with our audience at the 10th Annual AtlAS conference, we assessed and discussed some intriguing scenarios involving arbitrator challenges. While fictional, the scenarios were all based on real-world experiences of the panel and posed this question to participants: If you were counsel, would you challenge, and thereby seek to remove, the arbitrator? After reviewing each scenario and posing this question, GAR took a live poll of all initial participant responses. Our moderator, the estimable Prof. Janet Walker, then spiced…
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BusinessLitigationTechnologyTrialUncategorized

The Cognitive Coffee Cup: Opening Argument in the Complex Commercial Trial

by Andrew Flake In reviewing developments in week one of the Elizabeth Holmes/Theranos trial, a prosecution expected to last for over four months, I immediately thought of the preparation necessary on both sides to deliver their opening statements. Trials like Holmes-Theranos are important not only because of the public discussion they create around important social issues — in this case, the shortcomings of venture capital’s ability to separate real financial performance from performative mythmaking — but for trial lawyers, because they give us data on how robust our jury system is in dealing with high degrees of complexity and volumes…
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MediationResolutionSocial science

Mediation and the Psychology of Money, Part II

by Andrew Flake In a prior post, I reviewed a compact and very readable book from Wall Street Journal columnist Morgan Housel, whose thesis, supported by colorful and timely examples from the world of business and commerce, is that our decisions about money are generally driven less by rational economics than by evolutionary psychology. From a business mediation and dispute resolution standpoint, it offered some rich insight. Here are a few additional examples: Not Understanding the Idea of “Enough“. What drives an already-successful individual, professionals like Bernard Madoff or Goldman board member and former McKinsey CEO Rajat Gupta, to cross…
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LitigationTechnology

Appellate Advocacy in the Zoom Era

by Andrew Flake What has changed, in this time of virtual cat-filters and huge daily dollops of professional screen time, about good appellate advocacy? Instead of standing behind a podium, in a quiet and majestic appellate courtroom, we are logging in to argue, sitting at our desk or in a conference room. Has that shifted or modified how we prepare, or how we deliver our arguments? I thought it would be interesting to not only think through the issue, but to talk to and get perspectives from both appellate lawyers and judges. Distilling what I heard, I would say this:…
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ArbitrationCross-Border DisputesSocial science

Assessing and Correcting for Implicit Bias

by Andrew Flake Especially in recent months, ADR practitioners, as professional problem-solvers who constantly evaluate and decide business and legal questions, have been examining a phenomenon that impacts all of us: implicit bias. We have been thinking about it, and discussing it, and most importantly, reflecting as a profession on how we can do better in controlling for and actively addressing it. This conversation is salutary and long-overdue. In judicial and arbitral decision-making, just as in other areas, implicit bias is a set of invisible assumptions, positive or negative, working in the psychic background to distort our views. Their power,…
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ArbitrationCase ManagementLitigation

“And If You Didn’t Hear Us the Last Time”: More Emphasis on Arbitral Award Finality

by Andrew Flake A just-issued Georgia Court of Appeals opinion underscores a message the state’s appellate courts have been sending for some time: Arbitration awards are not subject to automatic appeal. They are supposed to be, and are presumed to be, final. Despite this clear guidance, which is the same consistent one that federal courts applying the FAA have been delivering for many years, unsuccessful parties to arbitration have been going to trial courts arguing that one or more of the very narrow exceptions to arbitral finality apply, dressing up an ordinary legal appeal with the exception language, frequently in…
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ArbitrationCross-Border DisputesLitigationResolution

Location, Location, Location: Forum-Selection in International Litigation

by Andrew Flake I once spent a week arbitrating a technology dispute in Helsinki, Finland, walking through the city center to our hearing each day in gusting snow. We were there because the parties’ contract specified a Finnish seat, and among other special aspects of preparation, most of our packing involved how we’d be keeping warm! But apart from the choice of pinstripe or parka, where a dispute gets litigated or arbitrated means much more, and the Eleventh Circuit, in an investor fraud dispute, affords us a recent example. The facts of Don’t Look Media LLC v. Fly Victor Ltd…
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ArbitrationCase ManagementLitigationMediation

Phased ADR Clauses, Redux

by Andrew Flake Having discussed phased dispute resolution, a process in our contracts that moves from more informal modes of discussion to binding ones, like arbitration, let’s add some caveats. These provisions are not off-the-rack suits, to be draped over any, or every contract, or a magic conflict sponge, soaking up every puddle of discord. They need to be tailored, and they can themselves, especially if not stitched with care, give rise to additional litigation. What are some of the ways this can happen? I’d categorize them as questions of condition precedent, i.e., whether they are binding at all; questions…
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MediationSocial science

Human Nature and Mediation: A Focused Review of “The Psychology of Money”

by Andrew Flake I always appreciate a good book recommendation, and received one the other week in The Psychology of Money: Timeless lessons on wealth, greed, and happiness. In a compact format, author Morgan Housel, a Wall Street Journal columnist, looks at some of the ways that we all relate to money, sharing the insight that what drives these decisions are, more often than the pure rationalism of the economist, the more fluid principles of the psychologist. In considering the book’s insights, neatly packaged in twenty short and very readable chapters, I was, of course, also thinking of what they…
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BusinessCase ManagementMediation

If Honeybees Could Mediate: Benefits of Phased Dispute Resolution

by Andrew Flake I took a field trip last weekend, visiting the gardens of a friend and experienced beekeeper. During a tour of the grounds, I watched in fascination as she tended to honeybees in the hundreds of thousands. They were calm that day, and remarkably, despite our proximity, none of the swarm appeared to care much that we were there. My friend explained that bees have moods, or more properly, modes, and can move quickly from one to the other, usually triggered and organized by scent. But had anyone been stung, that stinger would have released a pheromone, attracting…
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ArbitrationLitigationTechnologyTrial

Delivering a Compelling Closing in the Complex Business Dispute

by Andrew Flake In complex litigation, we are continually distilling the simple from the complex, assessing multiple and often nuanced legal arguments, assessing hundreds of exhibits, sifting through the details of company work. With our closing, we set the capstone on this work, so it is important to make that time count. How can we craft a summation that is memorable and effective, one that will lead to only a good trial result, but to a win that is sustainable on appeal? Let’s begin with understanding the audience, the decisionmaker for the dispute. Although there are some principles common to…
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ArbitrationCross-Border Disputes

The Halliburton Decision, Part II: Considering the Contours of Arbitrator Disclosure

by Andrew Flake In a prior post, we looked at the lead up to the U.K. Supreme Court’s Halliburton opinion, an important decision that enters the thicket of disclosure practices, and emerges having cleared an open path. It involved a Chubb-selected arbitrator who did not disclose his related and contemporaneous participation in other, related references. As we saw, the justices framed the duty as one founded on concerns of not only actual, but unconscious bias, a duty rooted in English law and shaped by international practice. I expect that Halliburton will be cited frequently and looked to by parties, courts,…
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ArbitrationTechnology

Dotting the i’s (and Sealing the Envelope) In Arbitration-Award Challenges

by Andrew Flake The Federal Arbitration Act is oriented toward encouraging arbitration and upholding arbitral awards. And just as the substantive bases to challenge an award are narrow, so too are the procedural requirements strict. The Eleventh Circuit reminds us of that in an April 1, 2021 opinion, O’Neal Constructors, LLC v. DRT America, LLC, involving a motion to vacate filed on time but served too late. The underlying facts are not important, except that the arbitrators awarded seven-figure damages and more than $650,000 in attorney’s fees to O’Neal. With that award delivered in January, DRT had three-months under 9…
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ArbitrationCross-Border Disputes

The Halliburton Decision: UK Supreme Court Incorporates International Best Practices for Arbitrator Disclosure

by Andrew Flake As the use of international arbitration expands, so does the need for consistency in its rules and practices, and confidence in its ability to ensure absolute impartiality. That is so for both advocates and arbitrators. So I read with high interest the opinion of the UK’s Supreme Court in Halliburton Co. v. Chubb, which discusses in depth the issue of arbitrator disclosure under English law. Since England-seated arbitrations are so common in international commercial transactions, the opinion would be important enough to merit attention. But its importance ranges beyond English law: the Court authored the opinion with…
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Arbitration

ICDR 2021: The Role of the Tribunal Secretary

A new Article in the updated ICDR Rules introduces what for many common law lawyers and domestic arbitrators is a curious character: the tribunal secretary. A tribunal secretary, much more common in the realm of international arbitration, is a junior associate who assists the tribunal in limited, non-decisionmaking roles. Exactly what those roles are, however, is and has been the subject of much discussion. Generally, there is consensus that a tribunal secretary can provide administrative assistance–and especially in larger and more complex arbitrations, there is certainly value and efficiency in having those tasks handled at a lower billing rate. Although…
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ArbitrationCross-Border DisputesLitigation

Supreme Court Grants Cert in Servotronics Dispute; Likely to Resolve Circuit Split On Key International Arbitration Question

by Andrew Flake On March 22, the Supreme Court granted cert in the ongoing Servotronics litigation, presenting the likely opportunity for the justices to decide an ongoing and important important question for parties to international commercial arbitrations: whether or not they have a statutory means to take discovery in the United States. I have written before that cert was likely on the question, and with one more Court of Appeals joining the fray, at least four justices seem to agree. In September of last year, considering an application filed under 28 U.S.C. Section 1782 and a corresponding subpoena to Boeing,…
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ArbitrationCase ManagementCross-Border Disputes

ICDR 2021: Third-Party Funding Disclosure in Commercial Arbitration

by Andrew Flake As the market for alternative litigation financing or third-party funding (TPF) of commercial disputes has matured, more parties to commercial disputes are regularly seeking discovery of underlying funding documents. Depending upon the theory — whether a party has bias, who is the real party in interest, who is responsible for litigation or settlement decisions — courts deciding whether to order discovery have expressed mixed views. The same has been true in the international commercial arbitration realm, except that there is more consensus around the notion that, for purposes of arbitrator disclosure and conflict of interest vetting, TPF…
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ArbitrationLitigation

Sweeping for Mines: The Injunctive Relief Carve-out in Arbitration

by Andrew Flake The “injunctive relief” carve-out, which lies quietly in various forms in many arbitration agreements, is a too-often overlooked landmine. Its most frequent purpose, allowing parties to go to court for emergency relief while preserving their right to send the underlying dispute to arbitration, is benign; including the carve-out reflects the historical concern (not as often applicable now) that injunctive relief would not be available, or if available, would be inefficient to seek, from the tribunal. Thus, for example, in a trade secrets dispute, the plaintiff would secure an injunction against disclosure or further use of its secrets…
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Cross-Border Disputes

ICDR’s 2021 Rules Address Compétence-Compétence; Tension with New Restatement Continues

by Andrew Flake The International Centre for Dispute Resolution (ICDR) has updated its rules for international mediation and arbitration, effective March 1, 2021. Because ICDR has a record of thoughtfully advancing innovation in ADR, and because it continues to see a high number of new filings, it is worth practitioners’ time to be familiar with the new rule set. I want to discuss one aspect in this post that I think is significant: stronger and more direct language supporting a tribunal’s power to determine its own jurisdiction. The question here is, can the arbitrator decided arbitrability? In international arbitration, it…
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ArbitrationCross-Border DisputesLitigation

“Absolutely Incensed”: A Foreign Law Twist on Equitable Estoppel in Arbitration

by Andrew Flake A Ninth Circuit battle between two Indian incense makers over whether their case should be arbitrated has still not burned out. After one correction and remand from the U.S. Supreme Court, the Ninth Circuit considered this question: whether Indian law comes into play where two Indian parties, who signed a partnership and arbitration clause governed by Indian law, seek to bind a non-party to that agreement. In Setty v. Shrinivas Sugandhalaya (BNG) LLP (filed Jan. 20), an originally harmonious arrangement between two brothers to split the family incense business — with one fraternal business in Bangalore and…
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Case ManagementLitigationTechnologyTrial

What We Can Learn from the First All-Virtual Patent Jury Trial

by Andrew Flake After a week-long patent infringement trial in federal district court in Seattle, a civil jury hit gaming company Valve Corporation with a $4 million verdict for patent infringement. The case involved design aspects of Valve’s Steam game controller. Not an unusual result, except that this jury was selected, heard the trial and deliberated, and rendered the verdict entirely virtually, a first in the patent arena. As it happens, the Western District of Washington, where the trial took place, has pioneered virtual jury trials using the ZoomGov.com platform and done so very successfully. From the docket in the…
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MediationResolution

Mediation Principles for our National Conversation

Much of President Biden’s inaugural address sounded historically resonant American themes of unity across differences. As I watched, I thought about the work ahead for not only Congress, but all of us. In attempting to forge consensus around policy and legislative solutions–to move forward with actions to heal some of the social, economic, and health-related crises we’re confronting — a large part of our work is going to call less on traditional forensically-oriented political debate , and much more on the kind work we do as mediators. Consider how some of the principles that we apply as mediators can help…
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ArbitrationBusinessCase Management

When Does Documents-Only Arbitration Make Sense?

An underutilized dispute resolution process in U.S. commercial disputes is an arbitration conducted only on the exhibits, without a final oral hearing. Such a documents-only arbitral process, much more common internationally, resembles a summary judgment process more than it does a traditional arbitration. It’s worth a thoughtful look, so let’s consider: What are the advantages of documents-only arbitration, when does it make sense to employ, and, if they are employing it, how can advocates use the process most successfully?1. Advantages of Documents-Only Arbitration: For the right dispute, the main advantages — and they are substantial compared even with a typical…
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Arbitration

Repeat Player Bias in Arbitration: Snuffleupagus or Yeti?

The topic of arbitrator bias came up recently in two completely different settings — one, a presentation by a law professor to a group of lawyers, and one, in a conversation with a non-lawyer friend, a scientist. In both cases, the question posed was: Is there a tendency for arbitrators, knowing that certain parties and law firms are repeat players and thus more likely to reappoint them, to skew decisionmaking in a self-interested way? And the answer in both cases, for the law professor and my friend, was, “Well, yes, there must be some level of bias. If parties are…
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LitigationTechnologyTrial

Federal Court Hearings and Chill? Applause for More Live Streaming

The federal courts’ policymaking body, the Judicial Conference of the United States, has just kicked off a pilot program in selected district courts to livestream the audio of certain court proceedings. Despite the concern expressed by some that a wider public audience will encourage grandstanding, I’m convinced more access means better advocacy. To understand why, we can consider Jarndynce v. Jarndyce, the fictional legal dispute from Bleak House, whose length is legendary. As Dickens memorably expresses, the lawyers simply drift in and out of the courtroom, going through procedural motions and arguing about inconsequentials, without any recollection of what began…
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BusinessLitigationTechnologyTrialUncategorized

ROSS-Westlaw Copyright Feud: Approaches to Litigation Cost Management

What options does a smaller defendant have when a larger and better-funded competitor uses litigation as a means to exert financial pressure and drain resources? This scenario is one that legal AI company ROSS Intelligence, as a result of copyright litigation filed by Westlaw Publishing and its parent, Thompson Reuters, claims to find itself in. ROSS just announced that the costs of litigation initiated by Westlaw have forced it to shut down operations, depriving the public, in ROSS’s view, of a valuable legal research tool. In a complaint filed in May of this year and just argued on a motion…
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MediationResolutionTechnology

Phoning It In: Telephonic Mediation in a Virtual World

A litigator friend of mine recently shared her frustration over being forced to mediate a case by phone. The mediation was being set up by a government agency, and the agency representative in question was not open to any alternatives, whether an in-person meeting or even online, using a video platform like Zoom or Microsoft Teams. Fearing constraints on her ability to advocate, my friend was inclined to write the process off in advance. I tried to be reassuring, asking some questions about her case. How complicated are the facts? How strained is the relationship between the parties and party…
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MediationResolution

Uniform Mediation Act Still Trekking Through the States

The steadily rising costs of litigation, and the current backlog on civil dockets, have borne out what one of the most effective American trial lawyers of an earlier generation observed: that in litigation, “the nominal winner is often a real loser – in fees, expenses, and waste of time.” Correspondingly, over the past twenty years the U.S. mediation market has matured steadily, with the pandemic, and the widespread use of video technology in online dispute resolution (ODR), now galvanizing the process. So how do we continue this momentum, and move the use of mediation to its next level in frequency,…
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Mediation

A Promising Future for the Singapore Convention and Global Mediation

I was talking with a colleague from Australian recently, a barrister and frequent mediator, about what the coming years will bring for international dispute resolution, and for mediation in particular. We agreed that in more jurisdictions across the world, mediation will continue to gain wider acceptance and to be more frequently employed by parties in private disputes — and for that matter, that it should also be used more in the government and legislative area to help tamp down and mitigate some of the severe conflicts that have emerged in our polarized era. On the commercial litigation front, a step…
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LitigationTechnology

How COVID-Era Technology is Driving Down the Litigation Cost Curve

In order to move cases forward during the pandemic, we have accelerated technology deployment in litigation, setting up major new efficiencies for litigants. These technologies were there in some form prior to today. But widespread acceptance was missing: in a variety of litigation contexts, a bias existed in favor of in-person appearances. While that bias is still present, our recent forced experience with Zoom and other technologies – and the subsequent validation of their value – has gone a long way toward mitigating it. That is a big positive for litigation cost-control. Even after Covid-19 does not require the same…
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LitigationTrial

The Power of Theme: Epic Games Takes Aim at Apple

The lawsuit by Epic Games against Apple, challenging Apple’s strict controls on developers and the App Store’s percentage take from game revenue, shows the power of theme and coordinated message. When I read the first news accounts of the filing, they all referenced Apple’s market power and control. In Epic’s messaging, Apple is portrayed as a market behemoth — which of course it is, from a revenue standpoint — but more than that, using its power to stifle innovation and exploit the developers who depend on the App Store. Apple, in other words, is just too big and isn’t playing…
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ArbitrationBusinessCross-Border Disputes

Second Circuit Reaffirms Its View on Section 1782 and Private International Arbitration

Sharpening a split with sister circuits, the Second Circuit has now affirmed its position that private arbitral bodies are not “tribunals” under 28 U.S.C. § 1782. For the time being, then, if your dispute is in international arbitration administered by an entity like the ICC, or a regional arbitral commission, you are prevented from using Section 1782 to obtain testimony or documents located in New York or elsewhere in the Second Circuit. I suspect this will not be the case for very long: I’ve written before about the likelihood that this question reaches the Supreme Court, noting that two circuits…
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ArbitrationResolution

Maintaining Confidentiality in Arbitration

We often hear that arbitration affords a level of confidentiality that courtroom proceedings do not. While that is true to an extent, it requires some qualification: It is the parties who must, by agreement or request to the tribunal, take responsibility for avoiding disclosure. The AAA’s Commercial Rules, for example, require that the arbitrator and the AAA, not the parties themselves, maintain the privacy of arbitration (R-25). Under the UNCITRAL Arbitration Rules (Article 28.3) frequently chosen for international arbitration, the tribunal is required to conduct the arbitration hearing in camera; the rules do not speak to party disclosures. And under…
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TechnologyTrial

Virtual Patent Trial Underway in Southern District of New York

Pharma companies Ferring and Serenity began July 6 trying what should be a week-long patent case by remote video. After consultation with the court’s technician, and taking input from the parties on procedures, Chief Judge Colleen McMahon opted to utilize a secure Zoom-based video platform, instead of attempting to manage physical social distancing, to conduct the bench trial safely. In addition to attending to COVID-19 concerns, with a number of witnesses based in Europe, the approach is certainly one that saves costs. Here are some of Judge McMahon’s thoughtful comments on trial procedures, including managing exhibits with remote witnesses and…
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Arbitration

Sour Chilean Grapes and Specific Performance of Contracts In International Arbitration

  A winery investment dispute gives the Eleventh Circuit a chance to validate District Court powers in confirming arbitral awards.   In the second of two cases considering Latin American arbitration arising under the Panama Convention, the Eleventh Circuit reminds us that arbitrators have the same flexibility as courts to order a party to perform.   The arbitration involved an investor in a Chilean wine company — a financial relationship that had obviously soured — who wanted to offload its shares under a put provision in its agreement with the winery’s owners. When one of them balked, the investor, EGI,…
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Trial

How Will We Conduct Jury Trials In the Age of COVID-19?

At varying speeds, courts across the country are starting to reactivate trial calendars. This process is substantially easier for bench trials, and a number of them have already been conducted by video. The first one handled by Zoom, a five-week patent infringement trial in the Eastern District of Virginia, proceeded with few hitches. Both counsel and the court seems pleased with the process and did not observe any appreciable delay as a result of the format. I thought Judge Morgan’s comments were fascinating, in that he believed his credibility assessment during trial was actually helped, not hindered, by video. As…
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