Managing Business Disputes

Managing Business Disputes

The phone rang, and the caller said: “My partner and I have been in business for four years, and I am pouring my heart and soul into making it a success, almost 24 hours a day. She, on the other hand, doesn’t work nearly as hard, can’t supervise any employees without making them either angry or tearful, spends too much money, and then announces she wants more money. I’m going out of my mind. What do I do?”

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“No-Employment” Provision Might Void a Settlement Agreement in California

“No-Employment” Provision Might Void a Settlement Agreement in California PDF

A new Ninth Circuit case holds that a settlement agreement with a non-compete provision that amounts to a substantial restraint on engaging in a profession may be void. In Golden v. California Emergency Physicians Medical Group, et al., (No. 12-16514, April 8, 2015), a physician’s settlement agreement with his former employer included a provision that the physician waive his rights to employment with the defendant or at any facility that the defendant may own or with which it may contract in the future.

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Credit card companies are keeping us out of court. That’s a good thing, right?

Credit card companies are keeping us out of court. That’s a good thing, right? PDF

We all have them. Seems we can’t do without. Truth is, we have a love hate relationship with credit card
companies. They can help us soar with fantastic, well-deserved purchases, even help start small companies
for the entrepreneur in many of us. The credit card companies love us when we don’t pay the monthly
balance in full – that’s how they make their money.

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Are You Blogging or Advertising? Have You Crossed the Line?

Are You Blogging or Advertising? Have You Crossed the Line? PDF

Rande S. Sotomayor, Esq.

Lawyers are learning that despite the traditions of dignity and distinction that many believe characterize their profession, they must maintain an “online presence” that provides valuable information to present and potential clients. These days that effort includes the concept of “blogging.”

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Beware of Filing Simultaneous Claims in Arbitration and Court

Beware of Filing Simultaneous Claims in Arbitration and Court PDF

From the Los Angeles County Bar Association’s December 24, 2014 Daily eBriefs:

“Where plaintiff simultaneously sought damages in arbitration, and declaratory and injunctive relief in court, based on the same claims, and lost the arbitration, defendant became the prevailing party for purposes of an attorney fee award in the litigation under Civil Code Sec. 1717. Once the hearing on the merits of the parties’ dispute commenced at the arbitration, it was too late for plaintiffs to dismiss the civil action without prejudice and thereby avoid an attempt by defendants to recover attorney fees as the prevailing party in the action.

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Business Trend – Mediation Is the Future

Business Trend – Mediation Is the Future PDF

Anyone who has ever been involved in litigation knows that the process of resolving disputes in the courts consumes resources – most notably money and time. Litigation counsel try hard to deliver value, but we know that budgets for the business clients we represent in court show outside counsel fees and litigation costs as red ink, no matter what. That’s not even considering the risk of actually losing in court.

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Court of Appeal Helps Reduce Conflict over Paying Cell Phone Bills

The California Court of Appeal, in Colin Cochran v. Schwan’s Home Service, Inc., No. B247160, August 12, 2014, has held that employees who are required to use their personal cell phones for work are entitled to reimbursement by the employer of a reasonable percentage of the employee’s cell phone bill. It doesn’t matter if the bill is paid by a third person, and the details of the employee’s cell phone plan are not to be considered in the analysis of liability. Continue reading

Should Arbitration Be Used to Decide the Terms of a Business Deal?

Should Arbitration Be Used to Decide the Terms of a Business Deal? PDF

According to a number of California Congressmen, and the Chairman of the Federal Communications Commission, arbitration would be a good way to resolve the dispute between Time Warner Cable and television providers regarding the cost and manner of getting TV coverage of Dodger baseball games out to the public.

Apparently in the interest of the Dodgers TV-viewing public, these Congressmen and the FCC Chairman sent letters to DirecTV and Time Warner Cable Chief Executives urging the disputing entities to commit to “binding arbitration” in which the arbitrator would determine the price and the terms under which cable television subscribers could watch the Dodgers’ network, SportsNet LA. Continue reading

Anger and Hostility in Mediation

“In one of our concert grand pianos, 243 taut strings exert a pull of 40,000 pounds on an iron frame. It is proof that out of great tension may come great harmony.”
-Theodore E. Steinway

Let’s face it – parties and attorneys find themselves in mediation because they are in the midst of a fight. Many fights can be ugly, whether it’s a business, family, or consumer dispute. People feel that they’ve been treated unfairly, that they’ve done their best to resolve the conflict, and now it’s time to take the fight to the next level – with attorneys and courts. Continue reading

Attorney Negotiation Tactics – “Puffing” vs. Misrepresentation

California attorneys, and attorneys everywhere, must be aware of and avoid the dangerous pitfalls of overzealous representation. The California State Bar Standing Committee on Professional Responsibility and Conduct has issued a proposed formal opinion regarding the following question: “When an attorney is engaged in negotiations on behalf of a client, what conduct constitutes permissible “puffing” and what conduct constitutes improper false statements of material fact?” The Committee interprets Rule 3- 700(B)(2) of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code sections 6068(b), (c), and (d), 6106 and 6128. Continue reading

Word to the Wise – Confidentiality Clauses in Settlement Agreements WILL Be Enforced!

Attention parents! When warning your kids not to expose private information on Facebook or other social media, remember that the same guidelines apply to YOU in many different contexts. As in, when you promise to keep something confidential, you had better do so, or pay the consequences – at least according to the District Court of Appeal of Florida in an opinion filed on February 26, 2014 in Gulliver Schools, Inc., etc., et al. v. Patrick Snay (Case No. 3D13-1952).

Patrick Snay reached a settlement of an employment discrimination lawsuit against his former employer, and the settlement agreement contained a detailed confidentiality provision, which read in part as follows: Continue reading

U.C. Davis Study Reveals How Civil Litigants Want to Resolve Their Lawsuits

With the elimination of state court ADR programs, the shrinking of available courtrooms for civil trials, and the consequent delay in getting cases to trial and resolution, California attorneys must analyze and counsel their clients about how to obtain faster resolution of their disputes.

University of California Davis law professor Donna Shestowsky conducted a multi-jurisdictional study of civil litigants’ attitudes – at the beginning of litigation – toward procedural options to resolve their disputes. In “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” 99 Iowa L. Rev. 637 (2014), Professor Shestowsky concludes that litigants prefer mediation to all other procedures except for the judge trial and the procedure where attorneys negotiate with clients present. As between mediation and non-binding arbitration, mediation was a clear favorite. Continue reading

Is Pre-Litigation Mediation Too Early?

Attorneys often say that pre-litigation or early-litigation mediation just doesn’t work for them or their clients. The client may be too angry at the outset to consider the concept of compromise. The lawyer may need to impress a potential client with his “pit bull” aggressiveness as a litigator. The client may insist on having his “day in court.” And, what about discovery? Shouldn’t a responsible lawyer conduct discovery before settling his client’s case? Why should the lawyer give a preview of his case to the other side? Continue reading

How to Draft a Really Useful Mediation Brief

Why did you decide to read this article? Perhaps you are about to write your first-ever mediation brief. Or maybe you’ve written hundreds of them before. I’ll bet you’re looking for something new to help get the best results possible.

Of course I can give you an objective list of items that are always helpful, but really pretty standard. And you know those already: (1) the operative facts of the case, (2) the parties’ legal positions, (3) the details of the relief sought, (4) the history of any settlement discussions, (5) copies of any key documents. Continue reading

b2b – Commercial Mediation

Do you and your business partner have a dispute? Is your company about to dissolve because of a conflict you can’t resolve? Is your business having trouble with a vendor, client, or customer?

Are you trying to resolve your dispute quickly, fairly, and inexpensively, without going to court?

Consider this: An impartial third person with experience in both litigation and pre-litigation dispute resolution can help you save your business and important income-generating relationships, even relationships in family business disputes. Continue reading