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Commentary on In re Merrill Lynch & Co | Texas Supreme Court Case
By Victoria VanBuren - July 22, 2010
By William G. Whitehill In In re Merrill Lynch & Co., Inc. and Merrill, Lynch, Pierce, Fenner; Smith Incorporated, __ S.W.3d __ (June 25, 2010 slip op.), the Texas Supreme Court conditionally granted mandamus relief in favor of Merrill Lynch, staying litigation against it by a non-signatory company when that company’s sister company that was a signatory to an arbitration agreement was also asserting identical claims that were potentiall
Federal Judge Comments on “Why Isn’t ADR More Popular?”
By Victoria VanBuren - July 21, 2010
By U.S. District Judge W. Royal Furgeson, Jr. Dear Friends: I have read with interest “Why Isn’t ADR More Popular? A Report from Harvard.” From my perspective as a judge, I would recommend that lawyers be very careful about inserting mandatory arbitration language into their client’s contracts. First, I see a great deal of buyer’s remorse in cases where there is a mandatory arbitration clause that leaves a party no c
GUEST-POST PART IX | Questions Clients Have about Mediation: What Happens in Mediation?
By Victoria VanBuren - July 19, 2010
By Kent B. Scott and Cody W. Wilson Every mediation is unique. The mediator will work with the parties and counsel to devise the appropriate format for the mediation. In general, however, mediation has four stages: Opening joint session The mediation usually begins with a joint session. At this session, the parties will be seated and the mediator will introduce everyone to each other. The mediator will also set out some rules of appropriate condu
AP: Lawsuit Seeks Arbitration in Microsoft Case
By Victoria VanBuren - July 16, 2010
Here is an interesting article from the Associated Press: By MICHAEL J. CRUMB, Associated Press Writer Tue Jul 6, 6:17 pm ET DES MOINES, Iowa – Attorneys representing 23 states involved in a class-action lawsuit against Microsoft Corp. have filed a lawsuit over attorney fees against the Iowa lawyer who spearheaded a $179.5 million settlement with the software company. Roxanne Conlin of Des Moines negotiated the 2007 settlement that included $75 m
FTC Issues Report on Debt Collection Litigation and Arbitration
By Victoria VanBuren - July 15, 2010
Last year, the Federal Trade Commission (FTC) held five round tables in three cities discussing consumer debt collection litigation and arbitration. (read more here) The agency issued this week Repairing a Broken System: Protecting Consumers in Debt Collection and Litigation and Arbitration, a report containing the findings, conclusions, and recommendations. Chapter 3 of the FTC report addresses debt collection in arbitration: The report finds th
GUEST-POST PART VIII | Questions Clients Have about Mediation: Is the Mediator Like a Judge? What Should I Bring to the Mediation? What Should I Wear to the Mediation? How Long Will the Mediation Last?
By Victoria VanBuren - July 13, 2010
By Kent B. Scott and Cody W. Wilson Is the Mediator Like a Judge? Clients who are learning about mediation for the first time invariably want to know whether the mediator can adversely affect their core interests in the dispute. The answer is “no” because the mediator must be neutral and remain so throughout the proceedings. The mediator is not a decision maker and has no authority to require the parties to settle. The decision to settle belongs
Rent-A-Center, West Inc. v. Jackson | Blawgosphere Roundup on Arbitration Unconscionability Decision
By Victoria VanBuren - July 12, 2010
On June 21, 2010, the U.S. Supreme Court decided Rent-A-Center, West v. Jackson. The question presented was: Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (”FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision? We thought you would like to read some interesting
National Labor Relations Board Issues Guidelines for Employers’ Arbitration Policies
By Victoria VanBuren - July 8, 2010
On June 16, 2010, the National Labor Relations Board (NLRB) issued a Guideline Memorandum addressing the legal framework to use in employer’s mandatory arbitration policies. The Guideline Memorandum includes the following principles: (1) The concerted filing of a class action lawsuit or arbitral claim seeking to enforce employment statutes is protected by Section 7 of the Act, and if an employer threatens, disciplines or discharges an emplo
Texas Supreme Court Rules that Court Abused Its Discretion By Refusing to Stay Litigation
By Victoria VanBuren - July 7, 2010
The Texas Supreme Court held that a court abused its discretion when it refused to stay litigation that could moot arbitration of related claims in the same lawsuit. In re Merrill Lynch & Co., Inc. and Merrill Lynch, Pierce, Fenner & Smith Inc., No. 09-0161 (Tex. June 25, 2010) is similar to In re Merrill Lynch Trust Company FSB, 235 S.W.3d 185 (Tex. 2007). There, the court held that there are “many circumstances in which litigation must
GUEST-POST PART VII | Questions Clients Have about Mediation: Who Should I Bring to the Mediation?
By Victoria VanBuren - July 6, 2010
By Kent B. Scott and Cody W. Wilson Who Should I Bring to the Mediation? Client representatives. More is not better. The attorney and client should bring one or two employees who know the facts of the dispute. The problem is that often the employees most involved in a dispute have a vested interest in protecting their personal turf. Counsel and the client may have to decide how to handle an employee who was intimately involved in the dispute but
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