by Holly Hayes According to an American Hospital Association (AHA) News report, Don Berwick, M.D., Administrator of the Centers for Medicare & Medicaid Services, testified on February 10, 2011, at a House Ways and Means Committee hearing on the impact the Patient Protection and Affordable Care Act (PPACA) will have on Medicare. Dr. Berwick, said: “building an improved Medicare program and health care delivery system must be a collaborative effort” with states, health care providers and others. “CMS cannot do this alone, and neither can government as a whole,” he said. In response to concerns by Rep. Erik Paulsen (R-MN) about the law’s potential regulatory burden, Berwick said, “My attitude is that this is a partnership with providers and states. I’m not interested in making their jobs harder.” Last March, Disputing posted a New York Times interview with Dr. Howard Brody, Professor of Family Medicine and Director of the Institute for the Medical Humanities at the University of Texas Medical Branch in Galveston, which discussed a proposal for health care reform involving physicians. Physicians, Dr. Brody says, are not “innocent bystanders” to increasing health care costs but have made little effort to limit future medical costs. In an editorial published in The New England Journal of Medicine, he writes “If physicians seized the moral high ground, we just might astonish enough other people to change the entire reform debate for the better.” Drs. Berwick and Brody recognize a collaborative partnership is needed if we are to improve our health care delivery system. What are your thoughts on this issue? Technorati Tags: 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...Christopher R. Drahozal, John M. Rounds Professor of Law at the University of Kansas School of Law, and Peter B. Rutledge, Associate Professor of Law at the University of Georgia School of Law, recently authored a theoretical and empirical law review article entitled Contract and Procedure, (February 14, 2011), Marquette Law Review, Forthcoming; University of Kansas School of Law Working Paper No. 2011-1; UGA Legal Studies Research Paper No. 11-02. In the article, the authors examine procedural contracts and the effect recent U.S. Supreme Court decisions such as Rent-A-Center, West and Stolt-Nielsen have had on such agreements. Here is the abstract: This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties’ ability to regulate procedure by contract (at issue in the Supreme Court’s recent Rent-A-Center decision) and the scope of an arbitrator’s ability to fill gaps in parties’ procedural contracts (at issue in the Supreme Court’s recent Stolt-Nielsen decision). At an empirical level, this paper taps a largely unexplored database of credit card contracts available at the Federal Reserve in order to examine actual practices in the use of procedural contracts. The article may be downloaded here (without charge) from Social Science Research Network. What are your thoughts? Technorati Tags: ADR, law, arbitration
Continue reading...The World Intellectual Property Organization (WIPO) has launched an International Survey on Dispute Resolution in Technology Transactions. The survey was “developed with the support of the International Association for the Protection of Intellectual Property (AIPPI), the Association of University Technology Managers (AUTM), the Fédération Internationale des Conseils en Propriété Industrielle (FICPI) and the Licensing Executives Society International (LESI) and in collaboration with in-house counsel and external experts in technology disputes from different jurisdictions and business areas.” Survey topics include: I. Information about the Survey Respondent II. Technology Related Agreements III. Dispute Resolution Clauses in Technology Contracts IV. Types of Technology Related Agreements V. Resolution of Technology Related Disputes VI. Final Comments According to WIPO, The Survey results will be presented in a WIPO Center report which we hope may support you in negotiating dispute resolution contract provisions with business partners, and in identifying appropriate solutions for existing disputes. The WIPO Center will provide you as a participating respondent with a preview of the Survey results prior to full publication. We would also be pleased to offer to you or to one of your colleagues access to WIPO Center Workshops at a considerably reduced registration fee. You may complete the survey here. More information regarding the survey is available here. Technorati Tags: law, ADR, arbitration, Mediation
Continue reading...The Western District of Texas has dismissed a case for lack of personal jurisdiction after holding an arbitration clause in a reseller agreement was illusory and unenforceable. In Dell Mktg., L.P. v. Incompass IT, Inc., No. A-10-CA-590-SS, (W.D. Tex., February 9, 2011), Incompass IT, Inc., a reseller of Dell Marketing, L.P. products, purchased items from Dell totaling more than $75,000 and allegedly failed to pay for the products. Dell sued Incompass in a Travis County, Texas court to collect on the debt. Incompass subsequently removed the case to the Western District of Texas and filed a motion to dismiss for lack of personal jurisdiction and improper venue. In order to determine the matter of personal jurisdiction, the Western District requested more information and allowed both parties to file supplemental memoranda. To establish personal jurisdiction over Incompass, Dell relied in part on an arbitration clause contained in the parties’ contract. According to U.S. District Judge Sam Sparks, Here, Dell has provided evidence of an arbitration agreement between Incompass and Dell providing that arbitration would take place in Austin, Texas and be governed by Texas law. . . . This agreement was incorporated by reference through a statement on the front of each invoice that read: “PLEASE REVIEW DELL’S TERMS & CONDITIONS OF SALE AND POLICIES AT www.dell.com/us/policy OR UPON REQUEST, WHICH GOVERN THIS TRANSACTION.” With regard to personal jurisdiction, Judge Sparks stated, The final contact, and the one most significant to the Court’s personal jurisdiction analysis, is the arbitration clause in the Reseller Agreement between Dell and Incompass. As noted above, personal jurisdiction is a defendant’s privilege and may be waived. This waiver can be express or implied. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982). An agreement to arbitrate in a particular forum is one means by which a litigant can impliedly accept personal jurisdiction in that forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985); Ins. Corp. of Ireland, 456 U.S. at 703; PaineWebber, 260 F.3d at 461. The Court therefore concludes if Incompass agreed to arbitrate this dispute in Austin, Texas, and if the arbitration clause was valid, then Incompass impliedly consented to personal jurisdiction by this Court. According to the court, Under Texas law, the arbitration clause at issue in this case is illusory and therefore not legally binding. In Morrison v. Amway Corp., 517 F.3d 248 (5th Cir. 2008), the Fifth Circuit found an arbitration clause was illusory where there was “no express exemption of the arbitration provisions from Amway’s ability to unilaterally modify all rules, and the only express limitation on that unilateral right [was] published notice.” Morrison, 517 F.3d at 254. Here, those who contracted with Dell had to agree to terms and conditions that stated, in part: “These terms and conditions are subject to change at any time in Dell’s sole discretion without prior written notice.” See FAC, Ex. A at 43, 54, 66. Unlike in Morrison, in this case Dell did not even have to provide published notice of its unilateral modification of the arbitration clause. Thus, the argument for finding Dell’s arbitration clause illusory is even stronger in this case than in Morrison. Further, with respect to the arbitration clause in Morrison, the Fifth Circuit stated: “While it is inferable that an amendment thus unilaterally made by Amway to the arbitration provision would not become effective until published, there is nothing to suggest that once published the amendment would be inapplicable to disputes arising, or arising out of events occurring, before such publication.” Morrison, 517 F.3d at 254. Here, this Court was likewise unable to find language in the Reseller Agreement precluding amendment with retroactive effect. The possibility of such amendment at Dell’s sole discretion strengthens the Court’s conclusion the arbitration clause is illusory. After holding the arbitration clause in the parties’ contract was illusory and unenforceable pursuant to Texas law, the Western District of Texas dismissed the case without prejudice. Disputing discussed Morrison v. Amway when it was decided here. 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.