JAMS Publishes Inaugural IP Newsletter: IP Dispute Resolution Review

JAMS is proud to announce the first issue of the new JAMS IP Practice eNewsletter: IP Dispute Resolution Review. This newsletter aims to share some of that expertise with you and to create dialogue on important issues in the IP arena and their impact on ADR proceedings.

In this issue, a selection of new rulings are briefed by JAMS neutrals. Hon. James Ware (Ret.) recaps the Teva v. Sandoz ruling and makes a case for the use of mediation given the given the deferential nature of the “clear error” standard. Hon. Rosalyn Chapman (Ret.) discusses the Supreme Court finding that TTAB decisions should be given preclusive effect, a ruling that mirrors her own finding in a trademark infringement action on the Bench 12 years ago. James Amend, Esq. highlights recent rulings that bring into question the confidentiality of settlement negotiations outside the context of a mediation session with a third-party mediator and suggests mediation offers the best confidentiality protection for patent settlements. Bruce Friedman highlights coverage considerations prior to or in the event of a data breach. Mr. Friedman suggests the review of a company’s insurance policies and reveals where coverage may be hidden within existing policies, even in the absence of a cyber-insurance policy.

The newsletter also discusses an increasingly popular form of ADR, neutral analysis, which is used to gain valuable, strategic insight into the strengths and weaknesses of clients’ positions.  The article includes feedback from lawyers who have used neutral analysis in real case scenarios.

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Federal Case Update| Mail and Carrier

Richard Birke

Richard Birke

By Richard Birke

Court Dashes Postmaster General’s Hopes That New Argument to Avoid Administrative Arbitration, Not Raised Below, Is Unwaivable Because It Goes to Subject-Matter Jurisdiction
Ruiz v. Donahoe
2015 WL 1811810
United States Court of Appeals, Fifth Circuit

Blanca Ruiz worked for the post office. She sued Postmaster General Donahoe in a putative class action. The district court dismissed the case for lack of subject matter jurisdiction, but the United States Court of Appeals for the Fifth Circuit reversed and remanded the case for a determination regarding an administrative class action.

Donahue petitioned for rehearing, arguing that the CBA covering Ruiz’ employment bars litigation of her claims. He argued that despite the fact that he is raising this matter for the first time on the petition, he did not waive the argument because the matter goes to subject-matter jurisdiction.

The Court disagreed. It wrote “[M]andatory grievance and arbitration procedures in contracts, such as the CBA [in prior cases] are waivable and do not affect this court’s subject-matter jurisdiction. If a dispute is subject to mandatory grievance and arbitration procedures, then the proper course of action is usually to stay the proceedings pending arbitration. However, a dismissal may be appropriate ‘when all of the issues raised in the district court must be submitted to arbitration.’ In any event, agreements to arbitrate implicate forum selection and claims-processing rules not subject-matter jurisdiction….Donahoe has waived his argument regarding the CBA’s mandatory grievance and arbitration procedures by failing to raise it before the district court or this court prior to the present petition for rehearing.”

Public Policy Defense Fails to Overturn Foreign Arbitral Award
Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft MBH
2015 WL 1840880
United States Court of Appeals, Fifth Circuit

Lito Asignacion sustained injuries while working aboard a vessel operated by Rickmers Genoa Schiffahrtsgesellschaft MBH (Rickmers). The injury occurred in Louisiana and he filed suit in court there. Rickmers moved to compel arbitration.

Asignacion’s employment was governed by terms and conditions, which included the following:

“In cases of claims and disputes arising from this employment, the parties covered by a collective bargaining agreement shall submit the claim or dispute to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators. If the parties are not covered by a collective bargaining agreement, the parties may at their option submit the claim or dispute to either the original and exclusive jurisdiction of the National Labor Relations Commission (NLRC), pursuant to Republic Act of 1995 or to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators….Any unresolved dispute, claim or grievance arising out of or in connection with this Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory.”

The state court stayed the matter and ordered arbitration in the Phillipines. The panel determined that it could use only Phillipine law to determine the dispute, and it awarded the lowest grade of compensable disability, entitling Asignacion to $1,870.

Asignacion filed a motion to set the award aside as a violation of United States public policy.  Asignacion pointed to Article V(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which “allows a signatory country to refuse enforcement if recognition or enforcement of the award would be contrary to the public policy of that country.” The district court refused to enforce the award and Rickmers appealed.

The United States Court of Appeals for the Fifth Circuit noted that the burden of proof was on Asignacion. The Court rehearsed his main argument. “Asignacion’s counsel also urged that United States public policy requires that foreign arbitral panels give seamen an adequate choice-of-law determination; he argued that the arbitrators’ exclusive reliance on the choice-of-law provision in Asignacion’s contract did not constitute a choice-of-law determination, let alone a fair one.”

The Court was unpersuaded, and it reversed. Noting that the law does not require that U.S. courts apply U.S. standards to all foreign awards, it found that the court below had gone a step too far. “[T]he district court only determined that the arbitration and award ‘effective[ly] deni[ed]’ Asignacion the right to pursue his general maritime remedies. But that finding is insufficient to support the conclusion that the public policy of the United States requires refusing to enforce the award.”

JAMS Publishes Inaugural Employment Newsletter: Employment Matters

JAMS is proud to announce the first issue of the new JAMS Employment Practice eNewsletter: Employment Matters.  The newsletter aims to share the JAMS employment expertise and to create dialogue on issues that are timely and important.

In this issue, Judge Cardenas takes on “honest belief” doctrine and employees with second jobs in the context of FMLA leave. Mr. Grossman tells us about new protections for unpaid interns in California, joining nationwide voices questioning the long-term viability of internship programs.

Judge Jacobs-May and Maria Walsh, Esq. remind us in two articles that the process is just as important as substantive legal issues. Judge Jacobs-May shows that procedural fairness can obviate emotional triggers that prevent meaningful resolution of disputes. Similarly, Ms. Walsh describes how interactive processes to explore reasonable accommodations for pregnant employees can stop litigation before it starts.

Mediation Impasse-Busting Techniques

Bruce A. Friedman, Esq.

Bruce A. Friedman, Esq.

By: Bruce A. Friedman, Esq.

There comes a time in every mediation when negotiations reach an impasse.  Negotiations can stall at the outset of a mediation when the parties are unwilling to bargain with one another either because “it is the other side’s turn,” “we won’t respond to that outrageous demand” or “we won’t accept that insulting offer.” [1] Later in the mediation, impasse may occur when either party perceives that the other side is not negotiating in good faith, which means that one side has stopped matching moves with the other and has reached the bottom line, or their “limit of authority.”

For whatever reason an impasse occurs, mediators must provide the parties with the tools necessary to break the deadlock and move discussions to the zone of agreement.  This is the point at which the parties have narrowed the playing field and can negotiate to closure.

Effective impasse-busting techniques include the following:

  1. Ranges:  This is useful when the parties are far apart and not at a place where they want to make a specific offer or demand.  It involves the mediator asking each side whether they are willing to settle the case in a range of numbers—i.e., high six figures, low seven figures, etc.  If parties accept the mediator’s suggested range, the negotiations continue in that range.  The use of the range has brought the parties closer together.  One party may be willing to say that it would settle in the high six figures if the other party would be willing to settle in the low six figures.  This coupling of brackets with ranges is used when the parties are uncomfortable choosing a specific number to offer or it is too early for the parties to negotiate within a smaller range suggested above.
  2.  Brackets:  This is employed when a party is reluctant to go to a number unless the other side is at a level that will produce a settlement in the midpoint of the brackets.  For example, a party may say that they are only willing to offer $1 million if the plaintiff is at $3 million.  Brackets are an effective tool to close the gap when progress in trading demands and offers has narrowed but has not reached the zone of agreement.
For more on Mr. Friedman’s discussion, please read the full article, “Mediation Impasse-Busting Techniques,” from Law.com.

[1] Phrases in quotes throughout this article are heard in almost every mediation.  No offense intended if you find, as you will, that you have uttered these phrases.