Karl Bayer's Disputing Blog

Latest from Karl Bayer's Disputing Blog

The National Academy of Distinguished Neutrals (“NADN”) recently conducted an online national survey of its members. The June 2021 survey focused largely on the paradigm shift to online dispute resolution (“ODR”) proceedings that neutrals across the United States have made since the COVID-19 pandemic began.  Of the 782 NADN members who responded, only 11 respondents reported limiting their practice to in-person proceedings during the prior year.  Meanwhile, 512 respondents made the choice to go fully remote.  In all, more than 91 percent of NADN member proceedings were conducted online in the last 12 months. About 25 percent of NADN survey…
Kristen Blankley, Professor of Law at the University of Nebraska College of Law, has written a terrific article titled, “Standing On Its Own Shoulders: The Supreme Court’s Statutory Interpretation of the Federal Arbitration Act,” Akron Law Review, Forthcoming.  In her journal article, Professor Blankley analyzes more than one-hundred United States Supreme Court decisions addressing the Federal Arbitration Act. Here is the abstract: Empirical evidence on the Supreme Court’s use of tools of statutory interpretation is an emerging field of legal study. This Article is the first to use these methodologies to analyze the Federal Arbitration Act (“FAA”), enacted in…
The Supreme Court of the United States has agreed to resolve a circuit split regarding whether a federal court has subject-matter jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act (“FAA”) in situations where the court only has jurisdiction because the underlying dispute involves a federal question. In Badgerow v. Walters, et al., No. 20-1143, a Louisiana woman, Badgerow, was employed as a financial advisor by a Louisiana corporation whose three principals were independent franchise advisors for Ameriprise. Following her termination, Badgerow initiated a FINRA arbitration proceeding against the three principals claiming they committed…
We are excited to announce the newly redesigned Arbitrate.com now offers a variety of on-demand arbitration courses, including four classes taught by Disputing blog’s own Professor Tracy McCormack and Karl Bayer!  In Arbitration Advocacy, Tracy and Karl provide viewers with an in-depth introduction to the practice of arbitration.  The program is designed to give arbitration advocates insight into the arbitration process from commencement to post-hearing.  Course topics include preparing for the pre-hearing conference, the arbitration hearing, creating a persuasive case, what happens after the hearing, and more.  Each Arbitration Advocacy class may be purchased individually or as a…
The Supreme Court of the United States has declined to consider whether “final mile” delivery drivers are transportation workers engaged in interstate commerce and exempt from the Federal Arbitration Act (“FAA”).  In Amazon.com, Inc. vs. Rittmann, (No. 20-622) an Amazon delivery driver, Rittman, filed a putative class-action Fair Labor Standards Act lawsuit on behalf of thousands of Amazon delivery drivers.  In response, Amazon moved to resolve the dispute via individual arbitration pursuant to the collective action waiver and binding arbitration agreement each driver agreed to prior to working with the company. The FAA does not apply “to contracts…
One of the reasons for defining the plain and ordinary meaning is so the jury does not have to decide on the scope of the claim and it is clear to them what that scope is from the beginning. For example, in Eon Corp. IP Holdings LLC v. Silver Spring Networks, the scope of the claim was left open for the jury to decide after the district court determined the terms should be given their plain and ordinary meaning. See id. Eon Corp. IP Holdings claimed Silver Spring infringed three patents related to networks for two-way interactive communications. See id.…
In a patent infringement claim case, a court or special master must define the scope of the claim construction. “The purpose of claim construction is to ‘determine the meaning and scope of the patent claims asserted to be infringed.’” O2 Micro Intern. Ltd. v. Beyond Innovation Technology Co., Ltd., 521 F.3d 1351, 1360 (Fed. Cir. 2008) (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995) (en banc)). The patent is composed of claims and specifications that detail what invention is being patented. It may include elements from a prior art but must also include something that makes it…
Yesterday, the United States Supreme Court dismissed the latest petition in Henry Schein, Inc. v. Archer and White Sales, Inc., No. 19-963, as improvidently granted.  The case was a follow-up to the high court’s unanimous opinion in Henry Schein, Inc. v. Archer and White Sales, Inc., No. 17-1272 (January 8, 2019) regarding whether it is up to a court or an arbitrator to decide questions related to arbitrability. According to Henry Schein’s petition for certiorari, the question presented in the follow-up petition was: Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise…
The National Academy of Distinguished Neutrals (“NADN”) recently conducted a survey of litigators titled “The Customer Is Always Right(?)”.  The September 2020 survey asked litigators across the United States about their online dispute resolution (“ODR”) experiences and preferences.  Of the 500 litigators who responded, only two percent of respondents participated in a remote mediation or arbitration via videoconferencing software such as Zoom prior to March 2020.  By September 2020, however, nearly 95 percent of survey respondents were primarily participating in such meetings online. Over two-thirds of litigators who responded to the NADN survey felt their ability to effectively advocate for…
The United States Supreme Court has reportedly been asked to resolve a circuit split over whether parties to a foreign commercial arbitration proceeding may seek discovery in the United States under 28 U.S.C. § 1782(a).  Under the law, evidence for use before a “foreign or international tribunal” may be obtained via the U.S. federal district courts.  The nation’s federal courts, however, are currently split regarding whether private commercial arbitration tribunals are included in the definition of “foreign or international tribunal.”  The Second, Fifth, and Seventh Circuit Courts of Appeal have ruled foreign commercial arbitration proceedings do not qualify as a…