Basis of American Law - Constitutions Part 2

Most Common Forms of ADR: - Negotiatio - Mediation - Arbitration Negotiation  Parties themselves and/or their representatives communicate with intent to resolve dispute informally.  All of us have experience with negotiation; e.g., curfew, activity with another person.  Little or no structure –can be accomplished in one or multiple communications, phone calls, e-mails, texts, face-to-face meetings, etc.  Can involve a third party –“facilitation.” (Facilitator typically does not recommend solutions.)  “Meeting of the minds” resolution.  Most common way to resolve disputes –may avoid filing of lawsuit, may avoid having to go to trial if lawsuit filed, or may avoid judgment collection efforts if judgment is final; in other words, negotiation can occur at any time.  Parties maintain control in negotiation by (1) agreeing to negotiate since no one can be forced to negotiate and (2) retaining power to agree to settlement since no one can be forced to agree to settlement. Mediation  Same as negotiation except for involvement of neutral third party (mediator, also called settlement judge or officer) who proposes solutions, but does not make decisions regarding the matter.  It is a form of “assisted negotiation.”  Mediator is often retired judge but this is not required; can be experienced attorney, person with expertise in the industry, respected community or religious leader, etc.; no qualifications, license, etc.  Mediator is usually paid by the parties with the cost split between the parties.  Parties and mediator need to recognize that legal issues may be just one part of the dispute since non-legal issues can be very important and might impact or even block settlement.  Like negotiation, parties maintain control by (1) agreeing to negotiate since no one can be forced to negotiate and (2) retaining power to agree to settlement since no one can be forced to agree to settlement.  Mediation can be “binding” or “non-binding.”  Mediation is confidential since evidence about what happened at mediation is not admissible in court; e.g., trial, summary judgment.  This confidentiality encourages the parties to be open and honest about the case –both strengths and weaknesses –because nothing said in mediation can be used against them in court.  Mediator can help the parties to see the strengths or weaknesses of their case/position.  Parties get an idea of the other party’s case/argument. * Advantages of Mediation     Informal Procedures Quicker and less expensive resolution than trial Brings the Parties Together Mediator tries to reach a mutually satisfactory resolution between the parties. Nobody “wins at mediation.” Parties Choose the Mediator.  Disadvantages of Mediation    Cost (as compared to negotiation) Mediator does not make a decision for the parties; they have to reach a decision for themselves. No requirement for parties to negotiate “in good faith.” Arbitration   Neutral third party makes a binding or non-binding decision. Similar to a bench (nonjury) trial since parties present their evidence and arguments to neutral third party who then makes a decision.  Parties can decide who is to pay for the arbitrator, but usually the parties split the cost.   It can be as formal or informal as the parties decide. Current trend (policy) of the state and federal court systems is to favor arbitration over litigation.  What is a “forum selection” clause? - Example –“Mediation shall be conducted in Orange County, California.”  What is a “choice of law” clause? - Example –“This contract shall be interpreted under, and governed by, the laws of the state of California.”  Arbitration Clause = provision in a contract specifying any dispute between the parties arising out of the contract will be arbitrated (can be binding or non-binding). The Arbitration Process    Submission Hearing Decision Arbitration  Court’s Involvement - Arbitration clause in a contract needs enforcement. - Issue of Arbitrability: a party compels arbitration and the court resolves the issue of whether arbitration is required. o Example: Argument between parties as to whether matter at dispute was included in the arbitration agreement. o Example: Parties dispute whether arbitration was agreed to by them. o Example: Parties dispute whether arbitration clause is fair or enforceable. - A mandatory employment arbitration clause is generally enforceable.  Main defense to enforcement of an arbitration agreement is it is unconscionable–both of the following must be present in order for arbitration agreement to be invalidated: - Procedural unconscionability –take-it-or-leave-it agreement presented by stronger party to weaker party or agreement hidden in “the fine print” of contract prepared by stronger party. Substantive unconscionability –harsh, one-sided agreement favoring stronger party over weaker party. -  - Setting Aside an Arbitration Award Court does not look at the merits of the decision. The only issue is whether the award is valid. - The Court will not add or subtract from the remedies provided by the award. - Because the parties freely contracted with each other for arbitration, the court will not interfere if one party believes it received a bad bargain. - Court will set aside an arbitration award for: o Illegality; o If it undermines public policy; or o If the arbitrator exceeded his/her powers. Advantages of arbitration  Final decision usually achieved faster than it would have been in court – arbitrator’s decision is final (when binding arbitration); no appeal can be based on arbitrator’s legal or factual error.  Since less time needed for final decision –less expense (in most cases).  Flexibility/control –parties can create their own procedures and rules.  Private and confidential.  No “run-away” awards. Disadvantages of arbitration  Decisions can be unpredictable.  A more complicated (formal) arbitration may be just as expensive as litigation.  May result in more “split-the-baby” awards.  Damaging evidence may be admitted whereas applicable “Rules of Evidence” in court enforced by a judge may have excluded it. Arbitration  Usually, the losing party voluntarily complies with the arbitration award; e.g., losing plaintiff does not “re-file” or losing defendant pays the money owed according to the award.  The prevailing party can file a petition/motion to confirm the arbitration award as a judgment; easier to enforce/collect a judgment since court process can be used; court process not available to enforce arbitration award itself.  If there is a problem with arbitration process or award, either party can file a motion to vacate or correct the arbitration award; but, no vacation or correction due to arbitrator’s error of law or fact. Chapter 11 INTERNATIONAL LAW  Governs relations among or between nations.  International law = reconciles the need of each country to be the final authority over its own affairs and the desire to benefit from relations with one another.  Three Sources of International Law: - International Customs, - Treaties and International Agreements, and - International Organizations and Conferences Common Law Countries v. Civil Law Countries  See Exhibit 11-1 on page 213.  Common Law –as discussed in Chapter 1, courts independently develop rules by stare decisis for certain areas of law, not covered by statutory law.  Civil Law –Based on Roman civil law or “code law.” - Codified Law (i.e., statutory code). - Courts may not depart from the code and develop their own laws. INTERNATIONAL PRINCIPLES AND DOCTRINES  The Principle of Comity  The Act of State Doctrine  The Doctrine of Sovereign Immunity Chapter 8 Intellectual Property Rights     Trademarks Patents Copyrights Trade Secrets Trademarks  Trademarks help avoid consumer confusion.  Case 8.1 -The Coca-Cola Co. v. The KokeCo. of America (1920) on pages 150-151What was confusing about the two brands?  Statutory Protection of Trademarks - Lanham Trademark Act of 1946 - Federal Trademark Dilution Act of 1995  Trademark Registration  Trademark Infringement - When does owner have a cause of action?  Distinctiveness of the Mark - Strong Marks  “Fanciful, arbitrary or suggestive trademarks” - Secondary Meaning - Generic Terms  Pick Up Stix –game or restaurant? - Pick Up Stix restaurant and Pick Up Stix or Pick Up Sticks Game  Counterfeit Goods - Negative Economic Impact - Safety Issues - Stop Counterfeiting in Manufactured Goods Act (SCMGA)  Trade Name  Licensing Patents  Exclusive federal grant from the U.S. Patent and Trademark Office to make, use and sell an invention for 20 years (14 years for design).  Must be “novel, useful, and not obvious” in light of current technology.  First person to file, not invent, gets protection (America Invents Act of 2011). What is patentable?  Almost anything except: - Laws of nature, - Natural phenomenon, and - Abstract ideas  Patents for Software/Business Processes  Patent Infringement - May occur even though product is not identical.  Under U.S. law, no patent infringement occurs when a patented product is made or sold in another country (see Case in Point 8.12 AT&T v. Microsofton page 158). •Patent infringement suits and high-tech companies: - Case in Point 8.11: Apple, Inc. v. Samsung Electronics Co. on page 158 •Remedies Copyrights  Intangible property right granted by federal statute to creator of a literary or artistic production of a specified type.  Copyright Act of 1976 governs copyrights. - Works created after 1978 have automatic protection for life of author, plus 70 years.  Copyright owners are generally protected against: - Reproduction of the work - Development of derivative words - Distribution of the work - Public display of the work What is Protected: - Literary works - Musical works and accompanying words - Dramatic works and accompanying music - Pantomimes and choreographic works - Pictorial, graphic and sculptural works - Motion pictures and other audiovisual works - Sound recordings - Architectural works - Compilation of facts What is not Protected: - Ideas and Themes  Unless, the Merger Doctrine applies If the ideas and expression are inseparable, then the expression may not be copyrighted. Copyright Infringement  Occurs whenever the form or expression of an idea is copied. Substantial part is enough (does not have to be exactly the same or reproduce the original in its entirety). - Case 8.3 – Winnstead v. Jackson (2013) on pages 161-162  Did the defendant’s work infringe on the copyrighted work?  Remedies for copyright infringement - Actual damages to criminal prosecution and injunction.  Exceptions to copyright infringement - The “Fair Use” exception o No infringement if reproduced material is used for criticism, comment, news, teaching and research, o Determined on a case-by-case basis,  First Sale Doctrine - No infringement occurs when a person who lawfully owns a copyrighted work re-sells the work, because the original copyright holder no longer has control of content. Exceptions to copyright infringement, cont. - License  One party gives his or her property to another, without a transfer of ownership, and allows the other party to copy and distribute it. Copyright Protection for Software  Computer Software Copyright Act (1980) - Computer software is “literary work.” - Courts do not apply copyright protection to the “look and feel” of a computer program. Trade Secrets  Business process or information that cannot or should not be patented, copyrighted or trademarked.  Includes: - Customer lists - Plans - Research - Formulae - Pricing info - Marketing techniques/methods - Production techniques/methods, and - Generally anything unique that would have value to a competitor.  Extends both to ideas and to their expression, unlike copyright and trademark protection.  State and Federal Laws  Trade Secrets in Cyberspace International Protection for Intellectual Property  - Berne Convention (1886) Every country that signed must recognize U.S. author’s copyright. No notice required. - Citizen of a country that has not signed the convention who publishes a book in a country that has signed it, copyright will be recognized. - U.S. signed the Berne Convention in 1989. - Case -Golan v. Holder(2012).  What does this decision mean for copyright holders in the U.S.?