Category Archives: Bet-the-Company Litigation

Clinton Emailgate: Full Disclosure Beats Suppression of Information

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The controversy over the emails Hillary Clinton maintained on a personal server while Secretary of State recently obtained new legs with disclosure that fifteen emails produced by Sidney Blumenthal, a former Clinton aide, emails which included Clinton, were not produced by her.  (See “State Department Says Hillary Clinton’s Email Disclosure Was Incomplete.”)

The controversy started when documents produced in connection with ongoing investigations concerning the attacks on the American embassy in Benghazi, Libya, reflected an absence of emails from any state department account for Hillary Clinton, but instead emails to and from her personal email account. After discussions between the State Department and Mrs. read more

Law, Politics and Business Trials – the Myth of the McDonald’s Coffee Spill Case

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I attend a numbering of professional networking and bar events. At one recent event a speaker representing foreign clients discussed his clients’ desire to negotiate arbitration clauses to avoid the U.S. court system, which they view as exemplified by the “McDonald’s coffee spill” case.

I encourage clients to negotiate arbitration clauses where they wish to assure a private and more nimble resolution to business disputes. (See “Jay Spillane Delivers Update on Business Arbitration to ProVisors’ Valley LLP Group.”)  But, the idea that a case over spilt coffee teaches negative lessons about the U.S. court system has me diving head first into the fraught intersection of law and politics. read more

Lessons from Little League: Keep Your Feet in the Batter’s Box and Swing

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Last season my youngest son, at age six, played Farm Division in Little League. In Farm Division the coach lobs a few soft pitches to the batter. If the batter does not hit safely, the ball is put on a tee and the batter swings until hitting a fair ball. Every batter reaches base safely, even in the (unlikely) event that the first baseman catches the fielder’s throw and steps on first base before the batter.

Apparently Little League felt that boys who were reaching the World Series in their final year were getting too large and mature. So they changed the age cutoff for determining division placement. read more

The Snore of the Century: Mayweather-Pacquiao Promoters v. Streaming Services

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The promoters of the recent Mayweather-Pacquiao boxing match took one on the chin for raking in big dollars promoting the “Fight of the Century,” which instead was a technically masterful but tedious defensive performance by Mayweather, marred by reports that Pacquiao was fighting with an undisclosed injury. Not content with being knocked on the canvas for the quality of the fight, the promoters are sticking their chins out for another knockdown punch by threatening to sue those who pushed bootlegged streams of the fight, possibly including streaming apps Periscope and Meerkat.

Copyright owners have spent decades and millions of dollars taking technology companies to court over alleged facilitation of infringement through technology, with choppy results. read more

Advances in E-Discovery Allow Smaller Firms to Successfully Litigate Cases Once Only Handled by Their Larger Counterparts

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In almost any lawsuit, after the initial pleadings are filed, and before the trial, the parties engage in an extended period known as “discovery,” where each side demands and receives information about the other side and its case. In business cases parties typically ask for all of the contracts, communications and financial information that pertain to the issues in dispute. Businesses are generally quite reluctant to share internal business information with any third party, especially a litigation opponent. However, the law favors broad pretrial disclosure of information that has any potential relevance, and thus the volume of information exchanged in the discovery process could be great. read more

New Issues Surrounding Arbitration Clauses: What Every Lawyer Should Know

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ProVisors’ Orange County Legal Affinity Group participated in an April 2 lunchtime presentation “New Issues Surrounding Arbitration Clauses: What Every Lawyer Should Know,” delivered by Jay Spillane. Many arbitration clauses currently in use have not been updated for years, Spillane explained. Any lawyers using such clauses in their own or clients’ contracts should take another look at “old-school” clauses similar to this: “Any disputes arising under or related to this agreement will be resolved by binding arbitration before the American Arbitration Association.” Instead, Spillane urged, lawyers should consider a host of other matters that have been litigated since that now outdated language first came into use. read more

The Gripping Saga of Pre-Judgment Interest in Business Litigation

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This article, like most others covering a topic as dull as pre-judgment interest, doesn’t make for the most exciting reading. That excitement usually occurs after a business trial, during the conversation between a client and his lawyer who failed to properly consider how to handle a potential award of pre-judgment interest – the interest that accrues on an alleged obligation from a time prior to trial to the date of entry of judgment.

In a business case, it is not unusual for the disputed events to occur at least a year, if not several years, before trial. Pre-judgment interest may therefore constitute a significant portion of the award sought at trial. read more

Jay Spillane Delivers Update on Business Arbitration to ProVisors’ Valley LLP Group

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“What Business Lawyers Need to Know About Arbitration” was the topic of a December 16, 2014, lunch seminar Jay Spillane delivered to the San Fernando Valley LLP ProVisors affinity group. In the presentation, Jay suggested business lawyers take another look at the “old-school” arbitration clause lawyers have included in contracts for years: “Any disputes arising under or related to this agreement will be resolved by binding arbitration before the American Arbitration Association.” Instead, Jay urged, business lawyers should consider a host of other matters that have been litigated since that now outdated language first came into use. Those issues include the following:

• Scope of matters submitted to arbitration
• Arbitral society to adjudicate claims
• Forum and choice of law
• Single neutral or panel
• Discovery rights
• Timing and conduct of hearing
• Available remedies
• Basis for decision
• Appellate rights

For more information about best practices for business arbitration clauses,  see below:   read more

Will Juries Uncover ‘The Truth’?

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I recently read that the greatest obstacle to clear persuasive writing is for the author to forget what s/he knows, and write for the eyes of the reader, who likely has no prior knowledge about the subject.

A similar process must be undertaken when evaluating with a client how a jury is likely to see the conduct of the parties at trial.

I often have clients ask me whether, at trial, the jury or judge will see the “truth” as they know it. The clients have lived the underlying controversy. They have packed into their memories many more conversations, thoughts and writings than could ever be admitted into evidence at trial. read more