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Summary Judgment: A Tool in Franchise Arbitrations
Franchisors have come to rely on arbitration as an inexpensive and quick avenue to resolve disputes with franchisees. However, arbitrations have expanded in scope and complexity over the years such that many arbitrations now closely resemble a court or jury trial. In response, franchise counsel should incorporate language in the arbitration provision in the franchise agreement that gives the parties the express right to employ litigation tools typically used by plaintiffs and defendants to resolve issues before incurring the time and expense associated with full-blown trials. Those litigation tools include dispositive motions, such as a motion for summary judgment. Because very few franchise arbitration provisions deal with this subject, arbitrators today are often left to address this issue on their own, and some of them are unwilling to consider such dispositive motions, and instead require a full trial, including witness testimony, thereby imposing increased burdens and expenses on the parties.
As the record of arbitration decisions ' especially pre-hearing decisions on whether summary judgment motions should even be considered ' is extremely limited, it is difficult to accurately determine how many parties in an arbitration have been denied the opportunity to present a summary judgment motion. Most of the commercial arbitrations in the United States are governed by the Federal Arbitration Act (“FAA”). The FAA neither expressly permits nor expressly precludes the use of summary judgment or dispositive motions in the arbitration process ' it simply does not address this issue. Similarly, most arbitration associations do not specifically address in their rules the use of summary judgment motions in an arbitration. An argument certainly can be made that the language of the commercial rules for the American Arbitration Association (“AAA”) at least implies that the arbitrator has the flexibility or authority to hear and decide summary judgment motions in an arbitration. However, without express language permitting such motions, a party runs the risk of an arbitrator interpreting the rules differently.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Law Firms are Reducing Redundant Real Estate by Bringing Support Services Back to the Office
A trend analysis of the benefits and challenges of bringing back administrative, word processing and billing services to law offices.
Bit Parts
Summary Judgment Denied Defendant in Declaratory Action by Producer of To Kill a Mockingbird Broadway Play Seeking Amateur Theatrical Rights
Risks of “Baseball Arbitration” in Resolving Real Estate Disputes
“Baseball arbitration” refers to the process used in Major League Baseball in which if an eligible player's representative and the club ownership cannot reach a compensation agreement through negotiation, each party enters a final submission and during a formal hearing each side — player and management — presents its case and then the designated panel of arbitrators chooses one of the salary bids with no other result being allowed. This method has become increasingly popular even beyond the sport of baseball.
Disconnect Between In-House and Outside Counsel
'Disconnect Between In-House and Outside Counsel is a continuation of the discussion of client expectations and the disconnect that often occurs. And although the outside attorneys should be pursuing how inside-counsel actually think, inside counsel should make an effort to impart this information without waiting to be asked.