January 7, 2020
Local rules implementing alternative dispute resolution procedures typically provide that mediation attendees must have “settlement authority.” But what exactly does that term mean? Is attendance by outside counsel enough if someone else with full settlement authority is just a phone call away? A federal magistrate judge recently explored these questions..
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Tags:December 29, 2019
The Class Action Fairness Act (“CAFA”) provides expanded original diversity jurisdiction in federal courts for class actions meeting certain requirements, including an amount in controversy that exceeds $5,000,000. If the class representative commences a class action in state court that meets the requirements for removal, a defendant may seek to..
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October 6, 2019
Given the increasing popularity of pre-litigation mediation clauses, we continue to keep an eye out for new decisions addressing enforcement of such clauses. In a past post, we discussed the importance of fixing deadlines to both commence and complete pre-litigation mediation. A Hawaii federal court recently held that the relevant..
September 23, 2019
Last Tuesday, we published a blog post discussing how a flawed decision tree analysis led an insurer defending a wrongful death action to reject reasonable settlement offers, and then get hit with a nearly $40 million verdict and a $7.2 million judgment for breaching a Texas state law duty to..
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Tags:September 17, 2019
The dynamic present in personal injury mediations is fairly straightforward. The defendant’s insurer (or the defendant, if self-insured) will estimate the risk of a jury verdict for the plaintiff on liability, and discount the likely damages by that risk to determine a reasonable settlement range. On the other side of..
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Tags:September 9, 2019
The popularity of pre-litigation mediation clauses continues to grow. Such clauses are appealing because they provide parties with a window of opportunity to settle a dispute before becoming embroiled in litigation and incurring all of the attendant costs. Such opportunities are especially valuable where a dispute arises out of an..
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September 3, 2019
Standardized commercial general liability (CGL) insurance policies impose a “duty to defend” that obligates insurers to defend insureds against “suits” seeking damages for claims potentially covered by the policy. The existence of a duty to defend is determined by the allegations in the “suit” filed against the insured. Does a..
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Tags:September 3, 2019
We hope all of our readers have had an enjoyable summer, and relaxing Labor Day weekend. Alas, the wheels of justice ground well into August, and courts have continued to issue interesting mediation-related decisions. We have previously written (here and here) about decisions addressing dispute resolution clauses that obligate parties..
August 20, 2019
The existence and scope of a federal mediation privilege remains unclear. Among the Circuit Courts, the strongest and clearest endorsement of a federal mediation privilege is the Second Circuit’s decision in In re Teligent, Inc., 640 F.3d 53 (2d Cir. 2011). Yet, in a somewhat surprising about-face, a federal magistrate..
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August 19, 2019
The Ninth Circuit held last week that mediation-related communications between two parties on the same side of the table are inadmissible under California’s mediation confidentiality statute in subsequent litigation between those two parties. Apollo Education Group, Inc. v. National Union Fire Ins. Co., 2019 WL 3822322 (9th Cir. Aug. 15,..