“Agreeing to arbitrate a dispute, whether in a contract or by agreement, is a serious decision for any business.  There are pros and cons to binding arbitration versus trial in a court that go beyond a series of blog posts, but the fact is that when a dispute is arbitrated, finality is the rule. It is very difficult to appeal an arbitration award. In many instances, representing a party in an arbitration requires more due diligence and work than a trial. Great “arbitration” lawyering is therefore essential but many times does not happen.” warns David K. Taylor in BuildSmart Bradley’s Arbitration.

“Arbitration is a matter of contract. Federal and state law allow for the enforcement of arbitration clauses. Courts now favor arbitration. There are plenty of articles out there on drafting arbitration clauses, but far too often drafters fail to consider the basics.”

Read the article to learn the basics.

“An Orange County lawyer who represents clients in criminal defense cases faces federal charges of her own after being accused of conspiring to sell firearms without serial numbers, also known as ‘ghost guns.'” reports Brandi Hitt in Eyewitness News ABC 7.

“Federal agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives say 41-year-old attorney Melinda Romines was allegedly trying to sell the guns by acting as a broker between black market dealers and customers.”

“The weapons are referred to as ‘ghost guns’ because it is difficult to trace them.”

Read the article.

On Monday, a grand jury declined to indict Angela Elleman, a Kentucky defense lawyer, “accused of digging up shell casings linked to a murder case and keeping them in a safe for more than six years,” reports Debra Cassens Weiss in ABA Journal’s Criminal Justice.

“Elleman is a lawyer with the Louisville public defender’s office… A special prosecutor had presented the case to the grand jury.”

“Elleman represented Anthony Hogan, who told prosecutors in 2018 about the shell casings when they spoke with him about testifying against a co-defendant. Hogan and the co-defendant were charged in the April 2012 killing of 15-year-old Gregory Holt.”

Read the article.

“A lawyer who led the child molestation investigation and prosecution of former Penn State assistant football coach Jerry Sandusky lost his law license for a year Wednesday over his handling of a grand jury witness in the case, the Pennsylvania Supreme Court ruled,” reports Mark Scolforo in ABC 6 News.

“The justices issued a 5-1 decision to suspend Frank Fina’s license for a year and a day, agreeing with the Office of Disciplinary Counsel that Fina’s actions were improper in obtaining grand jury testimony about three top university officials by then-Penn State General Counsel Cynthia Baldwin.”

“Baldwin, who also was accused of violating professional rules for lawyers in her representation of the officials, was given a public reprimand by the high court Wednesday. Messages were left for her lawyer and at her home.”

Read the article.

“A Kansas law firm that claimed that a competitor was inflating client recoveries in its advertising won’t be able to pursue its lawsuit,” reports Debra Cassens Weiss in ABA Journal’s Law Firms.

“U.S. District Judge Eric Melgren of Wichita, Kansas, ruled against the Brave Law Firm in Feb. 12 decision dismissing his case.”

“The Brave Law Firm, a personal injury firm, had alleged that Brad Pistotnik Law and the Pistotnik-affiliated Truck Accident Lawyers Group were engaging in false and deceptive advertising by listing high-dollar recoveries.”

“Various amounts are listed on screen, including $9 million … The $9 million amount was also listed online and in print ads.”

Read the article.

“A Cleveland-area lawyer had to show his contrition with a $500 fine and a written mea culpa as a result of a judge’s order last week,” report Debra Cassens Weiss in ABA Journal’s Ethics section.

“Cleveland.com describes the contempt sanction for lawyer Anthony Baker of Lorain, Ohio, as a “Bart Simpson-esque dose of punishment,” imposed for leaving the defense table as a protest during jury instructions.”

“On Thursday, Judge Nancy Fuerst ordered Baker to write 25 times, in legible handwriting, that he will not engage in conduct that violates ethics rules.”

Read the article.

“The Ninth U.S. Circuit Court of Appeals has reversed a summary judgment in favor of the City of Los Angeles and two of its police officers in an action by a Century City entertainment lawyer who was handcuffed behind her back when arrested on a traffic warrant despite her protest that she had a severely injured shoulder that was “frozen” and that such positioning of her arms would result in extreme pain,” reports Metropolitan News-Enterprise.

“Among the allegations by plaintiff Marina Borawick are that, because the officers viewed her as belligerent, she was vindictively kept in handcuffs for about an hour, notwithstanding that she was in agony. Borawick charged that they acted despite a fear she expressed, after she was placed in a police car, that the experience—in light of her vascular disorder which had resulted in three bypass surgeries—could prove life-threatening to her.”

“A video recording of the encounter shows her exclaiming” she was afraid she was “going to have a heart attach.”: ‘I’m afraid I’m going to have a heart attack.”

Read the article.

“Michael Avenatti, the failed presidential candidate and lawyer who represented adult-film star Stormy Daniels in her suit against President Trump, was found guilty by a federal jury in New York on Friday of all three counts he faced over an attempt to extort Nike. The disgraced attorney could now spend a maximum of 20 years in prison, and his epic downfall hasn’t ended either, since additional trials await for other alleged crimes.” reports Chas Danner in the New York Intelligencer.

“Last March, federal prosecutors alleged that while Avenatti was representing a youth basketball coach, he and an associate threatened to publicly accuse Nike of illegally paying amateur basketball players if the company didn’t hand over millions of dollars. Avenatti was arrested in March after the FBI recorded him threatening Nike representatives.”

Read the article.

“A tip to an FBI hotline launched an eight-month investigation by the state police organized crime unit that ended this week with a Uniontown lawyer being accused of offering to launder drug money for clients.” reports Paul Peirce in TRIBLIVE’s Regional News.

“Authorities on Thursday arrested Tancredi Calabrese, 32, who is charged with dealing in the proceeds of unlawful activities, criminal attempt to deal in the proceeds of unlawful activities, unsworn falsification to authorities and tampering with public records. He is free on $50,000 unsecured bond. A preliminary hearing is scheduled Feb. 26.”

“The investigation began in June after the FBI received a tip about Calabrese’s alleged activity, Trooper Craig Yauch reported in court documents.”

Read the article.

“A California lawyer practicing in Orange County was arrested today on a federal grand jury indictment charging her with conspiring to sell firearms without a license and distributing methamphetamine.” reports LawFuel.

“Melinda Romines, 41, of Anaheim, was taken into federal custody this morning. She is expected to make her initial court appearance this afternoon in United States District Court in Los Angeles.”

“Romines has been charged with one count of conspiracy to engage in the business of dealing in firearms without a license, one count of possession of an unregistered firearm, and two counts of distributing methamphetamine.”

Read the article.

“Bayer AG has asked a California appeals court to overturn an $86 million verdict that found it was responsible for a couple’s cancer caused by its glyphosate-based weed killer Roundup.” reports Tina Bellon in Reuter’s Environment News.

“Bayer in a statement on Monday said U.S. regulators had consistently found glyphosate to be non-carcinogenic and that the Pilliods’ lawyer during trial repeatedly violated court orders in an attempt to inflame jurors.”

“The company denies the allegations made by more than 42,700 plaintiffs in the United States, saying decades of studies have shown Roundup and glyphosate are safe for human use.”

Read the article.

“Most lawyers have a general understanding of the “no-contact rule”  — with a few exceptions, you can’t communicate directly on the subject of the representation with someone you know is represented by counsel.  But where does in-house counsel fit in?  Is in-house counsel “fair game” for ex parte contact by opposing counsel?” asks Karen Rubin in Thompson Hine’s Communication.

“Last month, the Virginia Supreme Court approved Legal Ethics Opinion 1890, and answered “Yes,” in an opinion that also covered some other issues of concern to in-house counsel.”

Read the article.

“Legal technologies promise to flourish in the coming decade, and although it is not possible to predict all the innovations that are likely to become mainstream, the use of smart contracts appears to be on the rise. A typical smart contract uses computers and code to automate performance of some or all of the parties’ obligations. However, the legal terms of the contract are likely to remain in written form in a contract that people can read. If a dispute arises, the parties may prefer arbitration as an alternative to court, but arbitration doesn’t happen on its own – it typically requires a properly drafted arbitration clause.”

Steven K. Davidson, Michael J. Baratz, Jared R. Butcher and Molly Bruder Fox provide some tips in Steptoe’s News/Publications to keep in mind when considering how to draft these clauses.

Read the article.

“Let’s assume the mediator sticks his head into your room with a grin at 8pm after an exhaustive day when your client is still upset he made the 8^th counteroffer and the Mediator says: “Great news! Counter-offer accepted! We have a deal!” Wonderful, right? Even though your client was pushed way past what he came ready to do that day, you have a deal. So what mistakes are made when it comes to confirming the long sought, hard fought deal?” asks David K. Taylor in Buildsmart Mediation.

“This post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.”

Read the Top 10 mistakes made in mediations.

“The patient was age 53 when he was transferred to Kindred Hospital. He had been diagnosed with multiple sclerosis and bipolar disorder in his twenties. When he signed the arbitration agreement in issue, he had required 24-hour nursing care for the previous 13 years, although he was not cognitively impaired at the time of the signing.” reports the Law Office of Donald D. Vanarelli in their blog.

“After he filed a negligence suit regarding pressure ulcers he had developed, the hospital filed a motion to dismiss his complaint and compel arbitration, based on the arbitration agreement the patient had signed. The hospital’s motion was denied, and an appeal was filed. On appeal, the Appellate Division affirmed.”

The appeals court noted “The arbitration agreement was not explained to him; he was only told to sign all the documents. He did so, including the “voluntary” arbitration agreement. Every document was signed within the span of one minute. The arbitration agreement stated that his signature was not a precondition to treatment, and that he could cancel it within 5 days; however, he was not provided a copy of the arbitration agreement.”

Read the article.

Careful drafting of employment arbitration agreements due to the U.S. Supreme Court’s decision affecting an employer’s ability to enforce such agreements is critical, warn Art Silbergel and Kacey Riccomini in a post on Thompson Coburn’s website.

The publication states “In the interim, employers and their counsel need to carefully consider options in drafting arbitration agreements that address the new law that may help in compelling a court complainant to arbitrate the claims. Anyone creating, revising or reviewing agreements to arbitrate employment disputes should consider” their 23 tips.

Read the article.

A former Skadden attorney is suing Sullivan & Cromwell for legal malpractice, claiming that the firm represented a client in a matter for which one of its partners had once been an arbitrator, in violation of ethics rules, reports Bloomberg Law.

The plaintiff, Andrew Delaney, claims that Sullivan & Cromwell acted “unlawfully” and “unethically” in the international arbitration matter, according to Bloomberg’s Melissa Heelan Stanzione.

“The Harvard Law School graduate’s complaint alleges that Sullivan & Cromwell partner James H. Carter chaired an arbitration panel that found in favor of Delaney’s clients, and the firm subsequently “proceeded to represent the losing party” to oppose enforcement of the award,” Stanzione writes.

Read the Bloomberg Law article.

The Eight Circuit has rejected a plaintiff’s claim that an arbitration clause in a retainer agreement she signed with a law firm was unconscionable, according to Carlton Fields’ Reinsurance Focus.

The plaintiff claimed she had received a call from a purported agent of the firm informing her of a purported life-threatening medical condition, leading her to have surgery that she considered to be less than successful. She sued the law firm and other defendants, and the firm sought to compel arbitration pursuant to a retainer agreement.

The district court found the arbitration agreement was unconscionable and refused to compel arbitration. Despite acknowledging that the circumstances that gave rise to this lawsuit were “troubling,” the Eighth Circuit determined that the retainer agreement was not procedurally unconscionable.

Read the article.

The U.S. District Court for the Northern District of Texas compelled arbitration in a putative Fair Labor Standards Act class action based on language in a “notice to employees” that put the plaintiffs on notice that they were agreeing to arbitrate claims in an incorporated (and hyperlinked) arbitration agreement, according to Carlton Fields; Reinsurance Focus.

Author Brendan Gooley adds that the court also rejected various other defenses to arbitration raised by the plaintiffs in an attempt to avoid arbitration.

The court found that the notice to employees contained sufficient language to incorporate the arbitration agreement by reference, and the notice to employees was also clear on that point.

Read the article.

U.S. District Judge William Alsup of San Francisco has berated lawyers for big tech companies before, and now an attorney for DoorDash found himself the target, reports the San Francisco Chronicle.

The issue was the way the meal-delivery startup pushed its couriers into arbitration, writes the Chronicle‘s Mallory Moench.

Courthouse News Service describes an exchange Alsup had with DoorDash lawyer James Fogelman, of Gibson Dunn & Crutcher:

“Your law firm and all your firms have tried for 20 years to keep plaintiffs out of court, and you’ve gotten a lot of success in the courts,” U.S. District Judge William Alsup said. “Then someone says, ‘OK. We’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling away, trying to find a way to squirm out of your agreement.”

DoorDash had been ordered to pay more than $11 million in arbitration fees.

Read the SF Chronicle article.