On Appeal of FINRA Arbitration Award, Investors Out of Money and Out of Luck
by Andrew Flake
Especially on appeal, courts are selective about which facts to include in opinions. For reasons both of style and precedential value, they may omit facts, even ones the lawyers might consider crucial.
Poker, Peru, and Promptness in International Arbitration Challenges
by Andrew Flake
In discussing our litigated disputes, we will often borrow phrasing from the world of poker. And it is true that the game, with its mix of tactics in play and chance in the draw, invites some comparison:...
Control over Time in Business Mediation
by Andrew Flake
When we think about "successful" mediations, it is often about a financial bottom-line: what was demanded; what was paid; what potential jury verdict was avoided. The dollar-recovery can certainly be measured, and the trial exposure, especially...
Healthcare and Arbitration: Facility Admission Agreements and the Regulation of ADR
by Andrew Flake
A case that has made its way up and down the Georgia appellate circuit, CL SNF, LLC et al. v. Fountain, has landed on remand, with a reminder about arbitration clause enforceability: In heavily regulated areas, with...
Arbitration Clauses: Reconsidering the “Equitable” Relief Carveout
by Andrew Flake
When lawyers represent business clients in arbitration, they are often relying upon a contract, and an arbitration clause, they didn't draft themselves. That may be because they are assisting a first-time client. It may be because...
Supreme Court Roundup: A Slight Course Correction for the S.S. FAA?
by Andrew Flake
In sailing, to "tack" is to turn by making a series of small port-to-starboard moves, back and forth, into the wind. In looking at two very recent Supreme Court options dealing with arbitration, both issued within the past...
Mining for Bitcoin or Mining for Iron? Blockchain Applications in Arbitration
by Andrew Flake
It's been a rocky few weeks for Bitcoin and other cryptocurrencies, and a nervous time for their holders. But investing aside, the blockchain, which underpins Bitcoin, is a real and transformative technology, one with implications all...
The Emergence of Required Third-Party Funding Disclosure
by Andrew Flake
In a standing order entered this week, the Chief Judge of Delaware's federal District Court has required all parties in cases before him to disclose at least the existence of any third-party funding (3PF), along...
Making the Most of Our Online Mediations
by Andrew Flake
After a nearly ten-hour day on Zoom, even after concluding a great settlement, we're sometimes less than celebratory. The process can be intense, consuming a lot of focus and energy. It leaves us pretty exhausted....
Second Circuit: No Inherent Limit on Using Section 1782 Discovery Elsewhere
by Andrew Flake
We try to take advantage of great opportunities when they come along; if work takes us to Rome, and we have extra time, we might head to the Colosseum, take a stroll in...