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...
ADR in the New Year: Seven Hopes, and A Partridge in a Pear Tree
by Andrew Flake
A busy lawyer friend grumbled to me recently, with just a hint of bah-humbug, that he hadn't had nearly enough time to answer all of his holiday mail and take down holiday decorations yet, much less...
Post-Award Filings in Arbitration: Eleventh Circuit Considers Timing Question of First Impression
by Andrew Flake
When an arbitration award comes down, if the winning party moves first to confirm it, the challenging party needs to respond directly, rather than simply moving to vacate. In an Eleventh Circuit case of first impression,...
“And If You Didn’t Hear Us the Last Time”: More Emphasis on Arbitral Award Finality
by Andrew Flake
A just-issued Georgia Court of Appeals opinion underscores a message the state's appellate courts have been sending for some time: Arbitration awards are not subject to automatic appeal. They are supposed to be, and are presumed...
Phased ADR Clauses, Redux
by Andrew Flake
Having discussed phased dispute resolution, a process in our contracts that moves from more informal modes of discussion to binding ones, like arbitration, let's add some caveats. These provisions are not off-the-rack suits, to be draped...
If Honeybees Could Mediate: Benefits of Phased Dispute Resolution
by Andrew Flake
I took a field trip last weekend, visiting the gardens of a friend and experienced beekeeper. During a tour of the grounds, I watched in fascination as she tended to honeybees in the hundreds of...
ICDR 2021: Third-Party Funding Disclosure in Commercial Arbitration
by Andrew Flake
As the market for alternative litigation financing or third-party funding (TPF) of commercial disputes has matured, more parties to commercial disputes are regularly seeking discovery of underlying funding documents. Depending upon the theory...
What We Can Learn from the First All-Virtual Patent Jury Trial
by Andrew Flake
After a week-long patent infringement trial in federal district court in Seattle, a civil jury hit gaming company Valve Corporation with a $4 million verdict for patent infringement....
11th Circuit Weights in on “Administrative Feasibility” as a Class Certification Requirement
A frequently-debated question in the class action realm is the role in certification analysis of "administrative feasibility." Must a plaintiff show, before a class is certified, that a manageable way to contact absent class members exists?
In the Third Circuit, for example, the proposed class representative must establish feasibility...
When Does Documents-Only Arbitration Make Sense?
An underutilized dispute resolution process in U.S. commercial disputes is an arbitration conducted only on the exhibits, without a final oral hearing. Such a documents-only arbitral process, much more common internationally, resembles a summary judgment process more than it does a...