Amazing changes in the litigation industry include the real arrival of television covering trials, including plenty of “mass tort” cases. Thus, as we start out 2019, Courtroom View Network published its “top 10” list from 2018 as to plaintiff verdicts. Presumably a defense list will follow.
An arbitration agreement may specify confidentiality, but does that term necessarily control and require sealing of subsequent proceedings in court? “No,” usually, is the answer according to a recent federal district court ruling in CAA Sports LLC v. Dogra, No. 4:18-cv-01887-SNLJ, 2018 U.S. Dist. LEXIS 214223 (E.D. Mo. Dec. 20, 2018). The key portion of the ruling is quoted below.
“But, in the context of arbitration, courts routinely reject arguments that arbitration awards and supporting documents should be sealed merely to honor the parties’ underlying confidentiality agreement related to their arbitration. See, e.g., Grynberg v. BP P.L.C., 205 F.Supp.3d 1, 3-4 (D.D.C. 2016); Redeemer Committee of Highland Credit Strategies Funds v. Highland Capital Management, L.P., 182 F.Supp.3d 128, 132-134 (S.D.N.Y. 2016); Amerisure Mut. Ins. Co. v. Everest Reinsurance Co., 2014 U.S. Dist. LEXIS 153013, 2014 WL 5481107 *2 (E.D. Mich. Oct. 29, 2014); Century Indem. Co. v. AXA Belgium, 2012 U.S. Dist. LEXIS 136472, 2012 WL 4354816 at *13-14 (S.D.N.Y. Sept. 24, 2012); Zimmer, Inc. v. Scott, 2010 U.S. Dist. LEXIS 77409, 2010 WL 3004237 at *2-3 (N.D. Ill. Jul. 28, 2010); Zurich Am. Ins. Co. v. Rite Aid Corp., 345 F.Supp.2d 497, 504 (E.D. Pa. 2004). Indeed, as aptly stated by Judge Easterbrook of the Seventh Circuit “[p]eople who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).
With these principles in mind, the Court finds little reason to seal the documents in this case. CAA Sports’ only argument is that the parties are contractually bound to confidentiality. Be that as it may, and even if the confidentiality provision, by its terms, applied both to court proceedings and the [*5] underlying arbitration, it does not bind this Court—being an agreement solely between the parties. More importantly, though, CAA Sports does nothing to explain why its interest in the secrecy of the underlying arbitration with Dogra should outweigh the public’s competing interest in free access to the judicial functioning of this Court. There is, for example, no suggestion that the arbitration award and supporting materials contain personal identifying information, implicate innocent third parties, or contain routinely protected information such as trade secrets or proprietary data. In fact, CAA Sports cites no law favoring its position—it cites no law at all.”
Hat tip to the St. Louis Record for publishing a December 25, 2018 article regarding the ruling. As some will recall, Legal Newsline previously moved for and obtained orders requiring unsealing of records in the Garlock trial. The various “Record” publications and Legal Newsline are inter-related. See this about page. The same page also explains: “Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.”
Julian Ku provides interesting new and older observations and compilations on the subject he calls whale wars. The subject is back on his current radar because of recent 9th Circuit action on papers seeking injunctions to block an NGO from interfering with whaling ships. Or should that be viewed as recent efforts to block whalers from interfering in the lives of whales. Either way, it’s interesting.
Spin and sound bites. Powerful tools when used well.
Consider a recent JP Morgan example. A class action suit nailed the bank for cheating service members on their mortgages because it failed to apply various applicable rules specific to service members. In court recently, JP Morgan admitted its failure, and "thanked" the class action lawyers. But last summer, JP Morgan’s testimony to Congress did not highlight the class action and instead reads as if JP Morgan found and fixed the problem all by itself. The facts and contradictory statements are all available through this AmLaw story. The Washington Post provides yet another view of the same facts.
Learning from failure has been much the topic lately, including a special issue from the Harvard Business Review. It would be nice to think JP Morgan really would reform itself due to its many failures. Time will tell. For now, JP Morgan’s purported contriteness fees like spin.
It ‘s Independence Day for those of us in the US. This seems a good day tor a post on transparency and televsion in Supreme Court’s around the world.
Stimulated by confirmation hearings in the US, here’s an interesting National Law Journal article by Aaron S. Bayer that summarizes the status of television use in various supreme courts around the world. Mr. Bayer is a well-known US appellate lawyer.
As we prepare to celebrate Independence Day in the US, the small excerpt set out below seemed especially striking as to the positive value of transparency in government;
"Finally, the Supreme Court of Namibia recently made history, allowing TV coverage of an argument in the court for the first time. The case involved a challenge by several opposition parties to the outcome of the general elections to Namibia’s National Assembly. The entire proceeding before the Supreme Court on May 31 was broadcast live on TV and radio"
Remember when the words in use were "weed killer" or "herbicide" ?
A news article from Brazil makes repeated use of a loaded new term: agrotoxins.The article has a definite view. It bemoans Brazil’s continued use of large amounts of asbestos, and various pesticides banned in the EU and elsewhere.
The counter names/words? "Crop protection chemicals," as used here by a trade group apparently associated with the manufacturers of the chemical products.
When disaster strikes, credibility is key, as explained by Levick Communications. BP survived the "perp walk" to Congress, but today’s NYT article on the disaster indicates the possibility that BP may be on the brink of a costly mistake. That mistake could rock its stock price, which already is down about 20%.
The possible mistake ? The NYT article this morning by Justin Gillis contains information consistent with its title: Giant Plumes of Oil Found Forming Under Gulf of Mexico. Specifically, the article goes on to describes scientists out gathering data suggesting that there is a huge unseen flow of oil below the surface. To address these issues, the scientists have asked PB for more data, but according to the article, the data is not being supplied.
My view ? The last thing BP needs is to face claims that is hiding the facts. Here’s the key quote from the article:
"BP has resisted entreaties from scientists that they be allowed to use sophisticated instruments at the ocean floor that would give a far more accurate picture of how much oil is really gushing from the well.
“The answer is no to that,” a BP spokesman, Tom Mueller, said on Saturday. “We’re not going to take any extra efforts now to calculate flow there at this point. It’s not relevant to the response effort, and it might even detract from the response effort.”
Today, media spin is everywhere as industries, governments, and NGO’s go back and forth on regulatory issues in a wide range of contexts. When one thinks back on the media ploys and activities of the tobacco industry, there are obvious history lessons to be learned and applied. When it comes to regulatory issues involving science, it is difficult to take comfort from regulations built around bullet points.
In the world of toxic torts, the media battles and stories continue. One example arises from Canada’s continuing mining and sale of chrysotile asbestos fibers. The Montreal Gazette includes a May 15 article by Michelle LaLond that focuses once again on the Chrysotile Institute’s effort to draw media and political lines between types of asbestos fibers.
The Institute maintains that use of chrysotile is "safe" in "controlled environments." The Institute, however, does not explain how "controlled environments" are achieved for asbestos-containing materials installed in buildings or slums in developing nations that lack a working regulatory system. The Institute also has not provided a comprehensive look at the amount of tremolite fibers found in chrysotile mined today or to be mined tomorrow. Tremolite "contamination" matters because tremolite is an amphibole asbestos fiber, and the amphibole fibers are far more "toxic" than are other fibers.