During 2009, we were honored to post contributions from several law professors and practitioners. Some wrote guest-posts, others submitted comments via e-mail, and yet others alerted us of important developments in the ADR area. We would like to thank our blog contributors for improving Disputing‘s legal scholarship! If you are interested in submitting materials for Disputing, please e-mail us at: victoria@karlbayer.com. Check out our 2009 blog contributors! (you may read their commentary by following the link after their bio) Audrey L. Maness is an associate in the Houston office of Weil Gotshal & Manges, and focuses her practice on patent litigation. In 2004, Ms. Maness graduated from Central Michigan University with a B.S. in Economics. Ms. Maness earned her J.D. at Pepperdine University School of Law, graduating summa cum laude in 2007. While at Pepperdine, Ms. Maness served as a Note and Comment Editor for the Pepperdine Law Review and as a research assistant for Dean Ken Starr. Following graduation, Ms. Maness clerked for the Honorable Steven M. Colloton, Judge for the United States Court of Appeals for the Eighth Circuit. She can be reached at: audrey.maness@weil.com. (read the post here) Don Philbin is a mediator, negotiation consultant and trainer, arbitrator, and attorney based in San Antonio. He has resolved disputes and crafted deals for more than 20-years as a commercial litigator, general counsel, and president of $100M-plus communications and technology-related companies. Don has mediated hundreds of matters in a wide variety of substantive areas and serves as an arbitrator on several panels, including CPR’s Panels of Distinguished Neutrals. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine Law School, holds a B.A. (business) from Trinity University, an executive M.B.A. from The University of Texas at San Antonio, and a J.D. and LL.M. (dispute resolution) from Pepperdine University School of Law. Don is listed in The Best Lawyers in America (Alternative Dispute Resolution; Woodward/White 2007, 2008, 2009). He may be contacted at don.philbin@ADRtoolbox.com. (read the posts here) The Honorable W. Royal Furgeson, Jr. received a B.A. from Texas Tech University in 1964 and a J.D. from the University of Texas School of Law in 1967. He was in the United States Army Captain from 1967 to 1969. He was an Assistant county attorney of County Attorney’s Office, Lubbock, Texas in 1969. He was a law clerk, Hon. Halbert O. Woodward, U.S. District Court, Northern District of Texas from 1969 to 1970. He was in private practice in El Paso, Texas from 1970 to 1993. Furgeson was a federal judge on the United States District Court for the Western District of Texas. Furgeson was nominated by President Bill Clinton on November 19, 1993, to a new seat created by 104 Stat. 5089. He was confirmed by the United States Senate on March 10, 1994, and received his commission on March 11, 1994. He assumed senior status on November 30, 2008. (read the posts here) John C. Fleming practices in the area of banking, financial services, regulatory and administrative law, governmental relations, commercial litigation and arbitration. His clients include banks, thrift institutions, life insurance companies, investment advisers and securities firms. Prior to joining Hays & Owens, Mr. Fleming served four years as General Counsel to the Texas Department of Savings and Mortgage Lending which oversees and regulates state chartered thrift institutions, mortgage brokers and mortgage bankers. He is an adjunct professor at The University of Texas School of Law and a frequent speaker on arbitration, banking and mortgage law topics. Mr. Fleming is Vice-Chair of the Regulatory and Compliance Committee of the Texas Mortgage Bankers Association, and is a nominee to become a new director of the Texas Association of Bank Counsel. The American Arbitration Association honored him with the 2008 President’s Award for Leadership in Conflict Management in recognition for his work in arbitration, mediation, and education; he also serves on the Commercial Arbitrator Roster. Mr. Fleming is a past Chair of the State Bar of Texas Alternative Dispute Resolution Section. (read the posts here) Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com. (read the posts here) Philip J. Loree Jr. is a partner in the boutique law firm of Loree & Loree, which focuses its practice on reinsurance dispute resolution and commercial and industry arbitration. Prior to forming Loree & Loree, Mr. Loree was a partner in the Litigation Departments of Cadwalader, Wickersham & Taft LLP and Rosenman & Colin LLP. He was also a Shareholder in Stevens & Lee, P.C.’s Litigation Department. Mr. Loree is also blogmaster of the Loree Reinsurance and Arbitration Law Forum, where he frequently comments on issues pertinent to reinsurance, and commercial and industry ADR. He is owner and co-founder (with Karl Bayer, Don Philbin, Robert Bear, and Victoria VanBuren ) of LinkedIn’s Commercial and Industry Arbitration and Mediation Group, which provides an open forum for the discussion of commercial, industry and consumer ADR. (read the posts here) Alan Scott Rau is the Burg Family Professor of law at The University of Texas. He received his BA and LLB from Harvard University. Professor Rau teaches and writes in the areas of Contracts and Alternative Dispute Resolution (particularly Arbitration). He is co-author of Processes of Dispute Resolution: The Role of Lawyers (3rd ed., 2002); ADR and Arbitration: Statutes and Commentary (West, 1998), and Cases and Materials on Contracts (West, 2nd ed. 1992), and […]
Continue reading...The United States Court of Appeals for the Fifth Circuit held that the payment of a deposit for an arbitration was a procedural matter for the arbitrators to decide. In Dealer Computers Svc v. Old Colony Motors, No. 09-20049 (5th Cir. Nov. 19, 2009) Old Colony Motors, Inc. (Old Colony) contracted with Dealer Services, Inc. (Dealer Services) for the purchase and maintenance of computer hardware and software for Old Colony’s dealership. Old Colony was required to buy the hardware necessary to run Dealer Services upgrades. In 2006, Dealer Services informed Old Colony that it would no longer support their current computer system without the required upgrades. Old Colony responded that it could not afford to pay for the mandatory upgrades. In 2007, Dealer Services filed an arbitration demand for almost $500,000 plus attorney fees and costs. The parties had agreed to arbitrate their disputes before the American Association of Arbitration (AAA) following the AAA Commercial Arbitration Rules. Because Old Colony could not pay its $26,900 deposit for the final arbitration hearing, the arbitrators asked Dealer Computer Services (the complainant) to pay the money for Old Colony. Dealer Services refused to pay and sued Old Colony in district court. The district court ordered Old Colony to pay. The issue decided by the Fifth Circuit was whether the district court erred by ordering Old Colony (the respondent) to pay the deposit to cover the arbitration fees. First, the court highlighted the test to determine whether a court should compel arbitration: Whether the parties agreed to arbitrate: (a) whether a valid agreement to arbitrate exists, and (b) whether the dispute falls within that agreement; and Whether federal statute or policy renders the claims nonarbitrable. Next, the court noted that the only question was whether the dispute falls within the arbitration agreement. Citing Howsam v. Dean Witter Reynolds, Inc., 123 S. Ct. 588, 592 (2002) the court said that “absent an agreement to the contrary, the parties intend that the arbitrator, not the courts, should decide certain procedural questions which grow out of the dispute and bear on its final disposition.” The court also noted that the AAA Rules allow the arbitrators discretion to order either party to pay the fees. Accordingly, the Fifth Circuit concluded that payment of the AAA fees was a procedural issue and thus one for the arbitrators to decide. [Ed. note: find Professor Alan Scott Rau’s commentary about this case here.] Technorati Tags: law, ADR, arbitration
Continue reading...by Holly Hayes In September 2009, President Obama instructed the Secretary of Health and Human Services to move forward with awarding medical malpractice demonstration grants to states funded by the Agency for Healthcare Research and Quality (AHRQ) to help doctors focus on putting their patients first, not on practicing defensive medicine. (read more here and here) In October, the Congressional Budget Office (CBO) released a letter updating its analysis of the effects of proposals to limit costs related to medical malpractice (“tort reform”). Tort reform could affect costs for health care both directly and indirectly: directly, by lowering premiums for medical liability insurance; and indirectly, by reducing the use of diagnostic tests and other health care services when providers recommend those services principally to reduce their potential exposure to lawsuits. The CBO estimated that implementing a typical package of tort reform proposals nationwide would reduce total U.S. health care spending by about 0.5 percent (about $11 billion in 2009) or roughly $54 billion over the next 10 years. That figure is the sum of a direct reduction in spending of 0.2 percent from lower medical liability premiums and an additional indirect reduction of 0.3 percent from slightly less utilization of health care services. Those estimates take into account the fact that because many states have already implemented some of the changes in the package, a significant fraction of the potential cost savings has already been realized. (read more here) In November, the Agency for Healthcare Research and Quality (AHRQ) announced it will solicit applications for planning grants from States and health care systems for “patient safety and medical liability innovations that put patient safety first and work to reduce preventable injuries; foster better communication between doctors and nurses; ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits; and reduce liability premiums”. Grant proposals may be submitted beginning December 20 and are due by January 20, 2010. (read more here) Technorati Tags: Healthcare, ADR, law, mediation Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.
Continue reading...In addition to the grounds for vacating awards provided by the Federal Arbitration Act (FAA), courts have developed the doctrine of “manifest disregard” of the law as a common-law ground to vacate awards. An arbitral panel is said to have manifestly disregarded the law if, knowing the existence of a clear legal principle, refuse to apply it. However, in 2008, in Hall Street Associates, LLC v. Mattel, Inc., 128 S.Ct. 1396 (2008) the U.S. Supreme Court concluded that the statutory grounds for vacating arbitration awards are exclusive when a party seeks judicial review under the FAA. The Court indicated that “manifest disregard” of the law was not a basis for reviewing such awards. For background and commentary on Hall Street, visit our previous posts: Professor Alan Scott Rau Responds to Hall Street v. Mattel Jun. 9, 2008 Professor Alan Scott Rau Gives Justice Souter a C-minus Jun. 5, 2008 Glen Wilkerson on Hall Street v. Mattel April 19, 2008 No Longer Can You Craft Your Own Arbitral Standard of Review March 26, 2008 Over the past year, the circuit courts have differed over whether the “manifest disregard” doctrine survives the Supreme Court’s holding in Hall Street. The First Circuit, in Ramos-Santiago v. United Parcel Serv.,524 F.3d 120 (1st Cir. 2008), concluded that Hall Street abolished “manifest disregard” as a ground for vacating or modifying an award under the FAA. Similarly, In Citigroup Global Mkts v. Bacon, 562 F.3d 349 (5th Cir. 2009) the Fifth Circuit strongly rejected “manifest disregard” as an independent, nonstatutory ground for setting aside an award. It stated that “the term itself, as a term of legal art, is no longer useful in actions to vacate arbitration awards.” (read more here) However, other circuit courts have reached a different conclusion. The Second Circuit held that “manifest disregard” survives Hall Street in Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2008). The court explained that “manifest disregard” was shorthand for a statutory ground, merely that the arbitrators “exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” The court stressed that arbitration is a creature of contract law and that the parties did not agree to an arbitration carried out in “manifest disregard” of the law. (read more here) Likewise, the Ninth Circuit concluded in Comedy Club, Inc. v. Improv West Associates, 553 F.3d 1277 (9th Cir. 2008) that Hall Street did not abolish “manifest disregard” because its case law considers it as a shorthand for statutory ground in § 10(a)(4). Also, the Sixth Circuit, in The Coffee Beanery, Ltd. v. WW, LLC, 300 Fed. Appx. 415 (6th Cir. 2008) interpreted Hall Street to limit only the contractual expansions of the grounds for review. More recently, the Tenth Circuit decided ‘DMA Int’l, Inc. v. Qwest Communications Int’l, Inc., applying the doctrine of “manifest disregard” of the law. (read more here) Despite the split on the circuit courts over the doctrine, in October 2009, the U.S. Supreme Court denied certiorari to three “manifest disregard” of the law cases: The Coffee Beanery, Ltd. v. WW, LLC, 300 Fed. Appx. 415 (6th Cir. 2008); Grain v. Trinity Health, 551 F.3d 374 (6th Cir. 2008); and Comedy Club, Inc. v. Improv West Associates, 553 F.3d 1277 (9th Cir. 2008). Technorati Tags: law, ADR, arbitration
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.