Lowering the Cost of Litigation: How Amendments to the Federal Civil Rules May Streamline the Path to Resolving Disputes
on April 21, 2016
Litigation costs time and money. The time and energy required to litigate a complex case, added to the financial cost, can be a deterrent to vigorously pursuing your claim or defense. To address these concerns, several aspects of the Federal Rules of Civil Procedure (the "Rules") were amended with the aim of reducing the burden and cost of litigation by (1) limiting unduly burdensome discovery conduct that increases the cost of litigation, (2) increasing efficiency in the management of cases, and (3) encouraging cooperation between parties. Below we highlight the effects of these changes....
Transactions with Multiple Agreements Can Create Forum Selection Issues
on March 15, 2016
In transactional matters, it is not uncommon for parties to negotiate the method and forum for the resolution of disputes. Inevitably, the parties will place their agreed-upon dispute resolution process into their written transactional documents and then prepare to close the deal. But what happens when the transaction involves multiple written agreements which are inconsistent, or at best, inconclusive as to the parties' intent on the appropriate dispute resolution process? In such instances, Ohio courts are likely to resolve the issue by employing the "umbrella agreement" test adopted by the Sixth Circuit Court of Appeals in Nestle Waters North America, Inc. v. Bollman, 505 F.3d 498, 504 (6th Cir.2007). In Nestle Waters, the Sixth Circuit held that where there are multiple contracts between the parties, a dispute is arbitrable pursuant to an arbitration clause in one of the contracts if the arbitration clause forms "part of the umbrella agreement governing the parties' overall relationship . . . ." Id. at 506. Thus, parties finding themselves in such a situation must determine which agreement, of several, is the "umbrella agreement" that will control the dispute resolution question....
Sometimes it Doesn't Pay to Be the Boss: Evaluating Personal Liability for Chapter 4112 Claims
on March 7, 2016
Under Ohio law, supervisory personnel have substantial personal exposure for Chapter 4112 discrimination claims arising from their own discriminatory conduct – exposure that generally does not exist under federal law. Thus, a claimant's election to assert federal or state law claims, or both, impacts not only jurisdictional issues, but also the potential parties to the case. In cases asserting Chapter 4112 liability, employers and their management must be aware of the potential for supervisor liability imposed by Ohio law, and must therefore evaluate the alleged discriminator's relationship with the claimant. But how so? Until recently, it could be difficult to determine whether the alleged discriminator was indeed the plaintiff's supervisor, as opposed to someone with merely a general supervisory role. However, by grafting the United States Supreme Court's definition of "supervisor" established in Vance v. Ball State Univ., -- U.S. --, 133 S. Ct. 2434, (2013) into the analysis, there is a reasonably-reliable framework for evaluating this issue. Indeed, some courts have already begun to do so....
An Arrow Is Removed From The Quiver Of Class Action Defendants By The Supreme Court's Ruling in Campbell-Ewald v. Gomez
on February 29, 2016
Anyone that has participated in the prosecution or defense of a class action knows that the attorneys' fees, costs, and expenses involved can be substantial. Prior to the United States Supreme Court's decision in Campbell-Ewald Co. v. Gomez, No. 14-857 (Dec. Jan. 20, 2016), class action defendants in cases pending in federal court had a rarely-used, but potentially powerful weapon at their disposal to terminate class actions in their early stages through the use of Federal Civil Rule 68 offers of judgment. The main issue addressed in Campbell-Ewald was under what circumstances, if any, a defendant's settlement offer and/or Rule 68 offer of judgment to the named plaintiff that provides complete relief to the named plaintiff could involuntarily terminate the named plaintiff's case and in turn terminate the putative class action. Id. at slip op. at 1. The Campbell-Ewald Court found that such an offer, without acceptance, does nothing to bind the named plaintiff. Id. at 2. It therefore has no effect on the named plaintiff's claim or, in turn, the putative class claims. Id. The decision may leave the door slightly ajar for class action defendants, as it reserves for another day the issue of whether a defendant's placement of the full amount of the plaintiff's claim in an account payable to the plaintiff, or a similar irrevocable tender of complete relief to the plaintiff, would render the plaintiff's claim moot. Id. at 11....
Business Litigation Advisory Blog
on February 26, 2016
Welcome to Brouse McDowell's Business Litigation Advisory blog. In this forum, we will update the business community with insights on legal developments, trends, and issues affecting businesses of all endeavors, reaching topics including complex corporate litigation, employment litigation and counseling, intellectual property litigation, construction law, and products liability....