Mark your calendars! Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog will host “Legal Issues in the Development of the Internet: The Five Big Bang Theory,” a State Bar of Texas Webcast on Wednesday, August 25, 2010 from 12:30-1:30pm CST. TOPICS: Statutes and judicial rulings have impacted the development of the Internet, and this program will include a description of how laws including antitrust and intellectual property helped shape the Internet including Social Media. The Five Big Bang Theory describes technological developments since the invention of the punch card for the 1890 US Census, computers during World War II, proliferation of the browsers, and advent of Social Media. However each phase of the Five Big Bang Theory has been impacted by the law. So it also likely that the 6th Big Bang will also be impacted by the law whenever it occurs. For more information click here. To register click here. Technorati Tags: ADR, law, arbitration
Continue reading...The United States Court of Appeals for the Fifth Circuit held that a defendant had waived its right to compel arbitration because its substantial invocation of the judicial process had prejudiced the plaintiff. In MC Asset Recovery, LLC v. Castex Energy, Inc., No. 09-10451 (5th Cir. Aug. 2, 2010) MC Asset Recovery, LLC (MCAR) sued Castex Energy, Inc. (Castex) alleging breach of a purchase and sale agreement. The district court denied Castex’s motion to compel arbitration on the ground that Castex had waived arbitration through its substantial invocation of the judicial process. Castex now appeals. The Fifth Circuit noted that “[t]here is a strong presumption against finding a waiver of arbitration, and the party claiming that the right to arbitrate has been waived bears a heavy burden.” The court agreed with MCAR’s claims that Castex had waived that its right to compel arbitration through its substantial invocation of the judicial process. Castex answered MCAR’s suit asserting several affirmative defenses, including the right to compel arbitration. Castex requested a trial by jury and filed motions to dismiss after the filling of each of MCAR’s three amended complaints. Castex also sought a protective order seeking to stay discovery pending resolution of one of its motions. Ultimately, Castex proceeded to file a motion to compel arbitration when the district court had partially denied its third motion to dismiss. The court also found that MCAR had been prejudiced by Castex’s actions. MCAR had spent over $265,000 in attorney’s fees and costs in defending against Castex’s motions to dismiss. The court stated that “Castex’s delay in seeking to compel arbitration forced MCAR to incur significant legal expenses, placed it in a weaker legal position, and delayed the resolution of this case for over eighteen months.” Accordingly, the court affirmed the district court’s judgment denying the motion to compel arbitration. Technorati Tags: ADR, law, arbitration
Continue reading...We came across the article Unresolved Questions in the Wake of the U.S. Supreme Court’s Class Arbitration Ruling in Stolt-Nielsen v. AnimalFeeds International, by Robert E. Crotty from Kelley Drye & Warren LLP. Here is an excerpt: The U.S. Supreme Court’s April 27 ruling in Stolt-Nielsen v. AnimalFeeds Int’l. (No. 08-1198), leaves numerous questions unanswered, says attorney Robert E. Crotty in this BNA Insight. The five-justice majority ruled on when class action procedures can be used in arbitration, but the author says Justice Ruth Bader Ginsburg’s dissenting opinion could ‘‘eviscerate’’ the majority opinion because class action arbitration arises most often in consumer transactions and employment contexts, areas Ginsburg presumably referred to as ‘‘contracts of adhesion.’’ Crotty says that as long as Ginsburg’s ‘‘carve out’’ remains viable, attorneys should continue to include clauses in arbitration agreements that preclude class arbitration, and to include fee-splitting provisions, so that arbitration is not economically or procedurally onerous for consumers or employers. You may download the full article here. Any thoughts? Related posts: GUEST-POST | Rent-a-Center, West, Inc. v. Jackson and the Ongoing Assault on Party Autonomy, James M. Gaitis (June 23, 2010) GUEST-POST | Professor Alan Scott Rau Comments on Rent-A-Center, West, Inc. v. Jackson, Alan Scott Rau (June 22, 2010) Stolt-Nielsen v. AnimalFeeds | Blawgosphere Roundup on Class Action Arbitration Case (May 13, 2010) GUEST-POST | Stolt-Nielsen Opens More Doors Than It Closes, S.I. Strong (May 6, 2010) GUEST-POST | Professor Stipanowich Comments on Stolt-Nielsen v. AnimalFeeds, Thomas J. Stipanowich (April 28, 2010) Technorati Tags: arbitration, ADR, law
Continue reading...By Holly Hayes The Joint Commission (TJC) has patient care standards regarding patient rights. Standard RI.01.01.01 states: “The hospital respects, protects, and promotes patient rights.” The standard is scored by Elements of Performance (EPs) which include: 4. The hospital treats the patient in a dignified and respectful manner that supports his or her dignity. 7. The hospital respects the patient’s right to privacy. Even with those standards in place, The Los Angeles Times reported this week that some hospital staff members are using social networking to discuss patients on Facebook. Many hospitals are adopting no-tolerance policies for the release of patient information online, which covers everything from patient names to seemingly innocuous details such as weight. Los Angeles County’s Department of Health Services, for example, requires employees to sign an agreement that they will not release patient information through any non-county website. “If you’re giving any data about a patient at all, you’ve breached the privacy,” said Pam Lane, vice president of health informatics with the California Hospital Assn. “People are doing it and they are losing their jobs.” The state does not track online breaches of patient privacy separately from other breaches. So far this year, 686 breaches of patient privacy have been reported at hospitals statewide and substantiated by investigators at the California Department of Public Health, including four by healthcare workers. A number of the nation’s leading hospitals, including Cleveland Clinic and the Mayo Clinic, are raising awareness among their staff about how patient privacy protections such as the Health Insurance Portability and Accountability Act (HIPPA) apply online. “We already have guidelines; social media is simply another form of communication. It’s no different from e-mail or talking to someone in an elevator,” Ed Bennett (director of Web strategy at University of Maryland Medical System) said. “The safe advice is to assume anything you put out on a social media site has the potential to be public.” Let us hear your thoughts on patient privacy and social media. 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...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.