In his China Law Blog, Dan Harris writes that the dispute resolution provision in China contract may be the most important provision in the contract.

“If you put in a dispute resolution provision that makes sense, your Chinese company counter-party with whom you are contracting will be afraid to breach the contract. Conversely, if you put into the contract a dispute resolution provision that will not work, you are signaling to your Chinese company counter-party that it can breach its contract with you with impunity. Yes, it really is that important,” Harris writes in the blog post.

He explains why a provision calling for resolution in U.S. courts can sometimes be a hindrance, compared to a clause requiring dispute resolution to take place in Chinese courts.

Read the article.

A Pennsylvania Superior Court panel has upheld a fine of almost $45,000 against Philadelphia insurance defense attorney Nancy Raynor, imposed for alleged witness intimidation during a medical-malpractice case that at one point also resulted in a controversial $1 million sanction against her, reports The Philadelphia Inquirer.

A separate judicial overturned the earlier sanction — imposed in 2014 by a lower court — in June.

Reporter Aswin Mannepalli writes that Superior Court judges found Raynor was responsible for the $44,993.25 in legal fees and other expenses incurred by the plaintiff in the malpractice case as a result of Raynor’s actions.

Read the Inquirer article.

Reuters is reporting that President-elect Donald Trump is nearing a settlement of about $20 million in fraud lawsuits relating to Trump University, a person familiar with the matter said on Friday.

Some former students of the now-defunct school claim they were they were lured by false promises into paying up to $35,000 to learn Trump’s real estate investing “secrets” from his “hand-picked” instructors.

Reporter Karen Freifeld writes that sources tell her there are three lawsuits relating to Trump University: two class actions in California and a case brought by New York Attorney General Eric Schneiderman. All would be covered in the possible settlement. One of the cases, in U.S. District Court in San Diego, is scheduled to begin Nov. 28.

Read the Reuters article.

U.S. District Judge Gonzalo Curiel

The U.S. judge overseeing a lawsuit against President-elect Donald Trump and his Trump University told both sides they would be wise to settle the case “given all else that’s involved,” Reuters reports.

In the suit, some former students claim they were they were lured by false promises to pay up to $35,000 to learn Trump’s real estate investing “secrets” from his “hand-picked” instructors.

The statement by U.S. District Judge Gonzalo Curiel came after he had tentatively rejected a bid by Trump to keep some statements from the presidential campaign out of the fraud trial.

“Trump owned 92 percent of Trump University and had control over all major decisions, the students’ court papers say. The president-elect denies the allegations and has argued that he relied on others to manage the business,” according to the report by Dan Levine and Karen Freifeld.

Read the Reuters article.

Dallas lawyer Trey Branham of Dean Omar Branham says Donald Trump’s election could mean Texas-style tort reform at the federal level. As an example, he expects a revival of the FAIR Act – Fairness in Asbestos Injury Resolution Act of 2006 – which was narrowly defeated in Congress.

“The essence of the bill was that it would end asbestos lawsuits on both the state and federal level and set up a federal ‘trust fund’ funded by industry to pay asbestos lawsuit claims. The idea was to set up a complex set of medical and factual criteria that a claimant would have to meet to be eligible for compensation and compensation levels were capped without regard to income, loss or facts,” Branham said in an article posted by Androvett Legal Media & Marketing. “Additionally, fees would be capped at 5 percent of recovery. The practical effect of this would be that asbestos victims would not be able to engage counsel and would be forced to negotiate the medical and factual criteria alone and, if they were successful, would get far less compensation than the tort system generally permits.”

The political earthquake that hit Tuesday night has enormous consequences for the Supreme Court, swallowing up Judge Merrick Garland’s ill-fated nomination and dismantling Democratic hopes for a liberal majority on the high court for the first time in nearly a half-century, writes Robert Barnes for The Washington Post.

At some point next year, the nine-member court will be restored to full capacity, once again with a majority of Republican-appointed justices. Democrats in the U.S. Senate may try to filibuster Trump’s choice for the court, but Republicans could change Senate rules to remove that option for Supreme Court nominations.

In his article, Barnes predicts” “Trump’s upset victory likely changes the court’s docket as well: Court challenges to President Obama’s regulations regarding the Affordable Care Act and immigration, which have preoccupied the justices in recent terms, will likely disappear under a President Trump and a Republican-controlled Congress.”

Read the article in The Washington Post.

Image by U.S. Coast Guard

A federal judge has ordered that attorneys representing private individuals and companies who entered into economic and medical claims settlements with BP stemming from the Deepwater Horizon disaster are entitled to be paid $555.2 million to cover their legal fees and remaining court costs, reports The Times-Picayune of New Orleans.

U.S. District Judge Carl Barbier pointed out that award represents about 4.3 percent of the estimated $13 billion that BP is expected to pay under the ongoing settlements. That compares to the average 9.92 percent of awards paid as fees and court costs in 21 similar “super-mega-fund” settlements totaling more than $1 billion, he said in an order.

“In weighing the award against local billing rates, Barbier said it would be the equivalent to an average $450 per hour legal fee, after being weighted for the intensity of effort involved in the case,” writes reporter Mark Schleifstein. “That compares to average nationwide rates of $604 for partners and $370 for associates in 2014, and to the $600 per hour paid by the state of Louisiana to its attorney in the BP case, Barbier said.”

Read the article.

A California casino could be held responsible for the deaths of more than a dozen casino customers following the crash of a charter bus with a questionable safety record, says Dallas bus crash lawyer Frank Branson.

Even though the bus involved in the California casino crash was owned and operated by an independent charter company, casinos have been held liable for passengers’ safety based on incentives and control exercised over the charter company and scheduling of charter trips.

“Casinos depend on these charter buses to bring in business,” says Branson in a post on the website of Androvett Legal Media & Marketing. “They negotiate with charter bus companies to receive the cheapest price and pay little attention to safety. The end result is poorly maintained buses and overworked drivers to transport patrons.”

Branson’s input comes after the deadliest bus crash in California in decades early Sunday morning near Palm Springs. A USA Holiday tour bus returning from the Red Earth Casino slammed into a tractor-trailer, killing 13 people – including the bus driver – and injuring 31 others.

“The speed of the bus was so significant that when it hit the back of the big rig…the trailer itself entered about 15 feet into the bus,” according to the California Highway Patrol. There were no signs of the driver applying the brakes.

As the NTSB investigates the cause of the crash, early reports indicate the bus owner and operator had been sued twice for negligence involving previous crashes, including one that killed three people.

In May of this year, Branson won a $4.9 million judgment against the Choctaw Nation of Oklahoma for the family of an 83-year-old woman killed in a 2013 casino charter bus crash.

“If casinos are going to charter the buses to bring gamblers, they should make sure the buses and drivers are safe,” says Branson.

The Alabama Supreme Court will recuse itself from suspended Chief Justice Roy Moore’s appeal of his ethics convictions, and defer to a special court to hear the appeal, according to a report by the Montgomery Advertiser.

Reporter Brian Lyman wrote that a public lottery will be held in the Alabama Supreme Court chambers Thursday afternoon, where the names of seven justices drawn from a pool of retired appellate court, circuit court and district court judges will take place.

Moore was suspended last month for the remainder of his term after he urged state probate judges to defy the federal courts on gay marriage, telling probate judges that a state order to refuse marriage licenses to gay couples remained in “full force and effect.” His advice came six months after the U.S. Supreme Court ruled gays and lesbians have a fundamental right to marry.

Read the article.

Attorney Stephen B. Diamond of Chicago has filed at least 911 qui tam actions in Cook County Circuit Court under the Illinois False Claims Act (FCA) and has racked up almost $30 million in settlements over 15 years, a new analysis by Bloomberg BNA reveals.

But the analysis shows that Chicago’s “king of qui tam” could be facing tougher sledding in the enterprise that has brought him $11.6 million.

“Bloomberg BNA’s analysis, drawn from hundreds of previously confidential settlements collected though a Freedom of Information Act request on the Illinois Attorney General’s Office, provides the first clear picture of Diamond’s false claims business model and the financial impact it has had on hundreds of defendants,” Bloomberg reports.

Read the article.

In a federal lawsuit filed this week, Apple asserted that nearly all the iPhones, chargers and cables it surreptitiously purchased from online retailer Amazon were fakes, according to a Computerworld report.

Reporter Gregg Keizer quoted the complaint: “As part of its ongoing brand protection efforts, [Apple] has purchased well over 100 iPhone devices, Apple power products, and Lightning cables sold as genuine by sellers on Amazon.com and delivered through Amazon’s ‘Fulfillment by Amazon’ program. Apple’s internal examination and testing for these products revealed almost 90% of these products are counterfeit.”

Apple sued Mobile Star, a New York-based former Amazon supplier. The plaintiff said it purchased iPhone-related products that were advertised by Amazon as genuine Apple gear, complete with Apple copyrighted images and sometimes in packaging copied from real Apple accessories.

Read the article.

Exterro has published “The Comprehensive Guide to E-Discovery Preservation,” an e-book that discusses how to incorporate preservation principles into the legal process that will enable defensible and proportional policies.

“The preservation process may be the most complicated and confusing stage within the e-discovery process, namely because there is no bright line indicator of when you need to start preserving data once litigation is reasonably anticipated,” the company says on its website. “Instead, judges and courts around the country have used their own discretion to decide when this must be done, depending on the circumstances surrounding the case. That is why you should continually reference preservation best practices and lessons learned from experienced e-discovery practitioners to ensure your process is defensible.”

The guide discusses:

• What is required within your preservation process
• Need-to-know steps for deciding how and when to preserve data, including new data types
• Preservation advice from in-house legal professionals

Download the guide.

The ongoing fallout from Samsung’s Note 7 debacle now includes a possible class-action lawsuit against the company in the U.S., according to a report by digital Trends.

Three former Samsung Note 7 users in New Jersey filed the suit a week after the Korean company ended production of the handset after faulty batteries caused more than 100 units to overheat and catch fire, reports Trevor Mogg.

The suit focuses on Samsung’s handling of the recall, which the plaintiffs claim caused them to go without a phone for several weeks while still having to pay for the device and plan charges, Motherboard reported on Tuesday.

Read the article.

Elizabeth Holmes

Photo by Max Morse for TechCrunch

Partner Fund Management, a San Francisco-based hedge fund that reportedly wrote out a $96 million check to Theranos in 2014, is now suing the blood-testing startup and its founder, Elizabeth Holmes, reports TechCrunch.

In its filing, the plaintiff says Theranos duped it into investing “through a series of lies, material misstatements, and omissions,” and accusing the firm of engaging in “securities fraud and other violations by fraudulently inducing” it to invest and to maintain its investment in the company reports Connie Loizos.

Reports says that the plaintiff claims says Holmes and another former Theranos executive blatantly lied to the hedge fund by claiming it had developed “proprietary technologies that worked” and that it was nearing regulatory approvals.

Read the article.

Apple Inc. won an appeals court ruling that reinstates a patent-infringement verdict it won against Samsung Electronics Co., including for its slide-to-unlock feature for smartphones and tablets, reports Bloomberg.

The U.S. Court of Appeals for the Federal Circuit overruled a three-judge panel, saying the lower court was wrong to throw out the $119.6 million verdict in February. The 8-3 ruling sent the case back to the trial judge to consider whether the judgment should be increased based on any intentional infringement by Samsung, writes Susan Decker.

“The decision Friday comes less than a week before the U.S. Supreme Court considers another case Apple had filed against Samsung. That case, to be argued Tuesday in Washington, focuses on how much Samsung should pay for copying patented designs for Apple’s iPhone,” according to the Bloomberg report.

Read the article.

Constant vigilance, skilled lawyering and good deal-making skills remain critical to the proper drafting of contractual arrangements, points out Glenn West in a post on Weil, Gotshal & Manges LLP’s Global Private Equity Watch.

He discusses the seriousness of drafting and interpreting contracts, and the care required in doing so, in light of the recent decision by the United States Court of Appeals for the Second Circuit in Chesapeake Energy Corp. v. Bank of N.Y. Mellon Tr. Co., No. 15-2366-cv (7th Cir. Sept. 15, 2016). The appellate court affirmed the judgment of the district court awarding damages in favor of the noteholders against Chesapeake Energy for $438,717,561.67 for redeeming notes at par after the period specified for redemption at par, the second time the Second Circuit has addressed Chesapeake’s of its $1.3 billion in notes based on the company’s interpretation of the Notes’ Supplemental Indenture.

The actual subjective intent of an  agreement “may well have been to provide Chesapeake a four month period in which to provide the required 30-60 days’ notice of redemption rather that to complete the actual redemption, but the Second Circuit, reading the actual words used to convey that intent, concluded that the words unambiguously conveyed a contrary meaning,” according to West.

Read the article.

BTI Consulting Group has published the results of its 2017 “Fearsome Foursome” survey, in which 300 general counsel named which law firms they would least like to see as opposing counsel.

Michael Rynowecer, CEO of BTI Consulting Group, described what it takes to make the list:

General counsels who responded to the survey pointed to a few things that the four firms named most-feared in the courtroom have in common, the first of which is an unrelenting approach, Rynowecer said.

“They have several strategies in place at once and keep coming at the issue,” he said. “Not only do they overturn every rock, but they find new rocks to overturn and keep coming up with new ways to act in their clients’ interests.”

The firms on the list are Dentons, Jones Day, Kirkland & Ellis, and Skadden.

The survey also includes 11 firms that made the “Awesome Opponents” list and 55 firms named to the honor roll of most-feared law firms.

Read the list.

NBC News reports that a class-action lawsuit filed against Wells Fargo might be hamstrung at the starting line, legal experts say.

Martha C. White writes that mandatory arbitration contract clauses may protect the bank from class-action suits brought by customers who had bank or credit card accounts opened in their names without their knowledge.

“Five years ago, a Supreme Court ruling said it was legal for companies to shield themselves from lawsuits by requiring that customers address grievances through a private arbitration system. Since then, consumers seeking redress from banks, even earlier cases against Wells Fargo in California, have been effectively stopped at the courthouse door,” according to the report.

“There’s no question that it’s very difficult to overturn an arbitration clause, although the facts in this case are pretty damning,” said Ed Mierzwinski, consumer program director for U.S. PIRG.

Read the article.

A federal judge slammed Facebook Inc., saying the social media giant might not be doing enough to deter terrorists from using its platform, Bloomberg reports. The judge also chewed out the company’s law firm, saying “it is outrageous, irresponsible and insulting” for sending a first-year associate to handle the hearing.

U.S. District Judge Nicholas Garaufis in Brooklyn, New York, accused Facebook’s lawyers of not taking seriously lawsuits with implications of international terrorism and the murder of innocent people. He ordered Kirkland & Ellis LLP, the law firm representing Facebook, to send a more senior lawyer to the next hearing on Sept. 28 because he wanted to “talk to someone who talks to senior management at Facebook.”

“Garaufis is overseeing two lawsuits in which more than 20,000 victims of attacks and their families accused Facebook of helping groups in the Middle East such as Hamas,” reports Patricia Hurtado. “The judge noted similar suits haven’t been successful under U.S. law which insulates publishers from liability for the speech of others. But he said that doesn’t mean Facebook shouldn’t take it seriously and try to address the issue.”

Read the article.

The iconic jewelry store Tiffany & Co. is a model for trademark enforcement by aggressively and successfully policing its brand in the courts. Last year Tiffany & Co. filed litigation against Costco, claiming that the warehouse giant sold more than $6 million of ersatz Tiffany engagement rings and improperly used the jeweler’s name on at least 200,000 in-store signs. That trial began this week in federal court in New York, according to an article posted by Androvett Legal Media & Marketing.

Chris Schwegmann, a partner at Lynn Pinker Cox Hurst in Dallas, who focuses his practice on intellectual property litigation, says:

“This type of litigation not only discourages counterfeiters, but also ensures that Tiffany’s luxury brand doesn’t get diluted over time. I find it interesting that Costco argued that ‘Tiffany’ represents a generic term used to describe a ring setting, and not just a brand name. That’s a tough case to make against a company that aggressively defends its brand.

“If this case goes as I expect, it is unlikely that other companies in the industry will try to make the same the same arguments against Tiffany & Co., which is a benefit of aggressive trademark enforcement.”

Read more about the case here.