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The Ninth Circuit recently issued an opinion that could shape how companies draft and revise two oft-encountered types of contracts: terms of service agreements (“TOS”) and arbitration clauses.

In Jackson v. Amazon.com, Inc., the Ninth Circuit affirmed the district court’s order denying Amazon.com, Inc.’s motion to compel arbitration in a case brought by a proposed class of “Amazon Flex” drivers. Amazon Flex is a delivery program run through a smartphone app that Amazon uses to engage individuals to make Amazon deliveries in their personal cars. 

The choice of arbitration institution can arise at any point in an investment cycle: from finalising initial agreements at fund or portfolio company level, or on an ad hoc basis when a dispute arises.

To help demystify some differences – this article sets out the key features of three commonly used international arbitration regimes that an asset manager should take into account when making such a choice.

Common practice dictates that plaintiffs often prefer to be in state court – and will sometimes go to great lengths to avoid federal court jurisdiction. That was the case in Deroy v. Carnival Corporation, a recent Eleventh Circuit decision, wherein the court rejected a plaintiff’s “creative effort” to escape a forum-selection clause requiring her to litigate in federal court.

Non-disclosure and confidentiality provisions can be an important aspect of resolving a case through settlement. But when one of the parties is a purported class, and the allegation is an antitrust violation, settlement and secrecy may be like water and oil.

This tension came to a head in Shane Group v. Blue Cross Blue Shield of Michigan, in which the Sixth Circuit vacated a $30 million settlement between the defendant and a class of Michigan citizens and corporations, settling allegations of health insurance price fixing. The reason: the district court refused to unseal the parties’ substantive filings – including the Amended Complaint, the motion for class certification, and the expert report on which the settlement was based. When a group of class members moved to intervene to unseal parts of the record and adjourn Rule 23 fairness hearings until they could review the settlement, the district court denied their motion to intervene. In the district court’s own view, the settlement was “fair, reasonable, and adequate,” and thus, class members had no further need for information about the case.

jury box-1The jury renders its verdict. No party objects. The judge thanks the jury for its service, discharges them, and tells them they are free to go. The jury exits, but there’s one problem: the jury’s verdict is internally inconsistent. Is it too late to call the jury back to rectify the inconsistencies in its verdict?

This was the question facing the Supreme Court in the case of Dietz v. Bouldin, decided earlier this month. After the jury delivered a verdict of $0 in damages, the judge discharged the jury and the jurors left the courtroom. However, the judge quickly realized that the jury’s verdict was legally impermissible: the parties had stipulated that medical expenses of $10,136 were owed, and the only question for the jury to decide was whether the award should be even higher.

Anyone who watches Survivor or Game of Thrones knows that alliances are critical. And while they may be necessary to endure from one day to the next, alliances are inevitably broken.

Co-defendants in antitrust cases can draw lessons from these shows. Like alliances, joint defense agreements (“JDA” or “JDAs”) help facilitate defendants’ common interests. JDAs create efficiencies and cost savings by “present[ing] a pooling of resources, a healthy exchange of vital information, a united front against a common litigious foe, and the marshaling of legal talent and advice.” Lugosch v. Congel. Under the right circumstances, JDAs also serve the vital purpose of allowing defendants to realize those benefits without waiving privilege. Id.

Australia-USA-1A producer and a distributor entered into an agreement to sell shoes in Australia. The contract contained broad New York choice of law and venue provisions.  When relations soured, the distributor brought suit in an Australian court, which declined to enforce either the venue or choice of law provision finding that doing so might deprive the plaintiff of a remedy it could obtain under Australian law. Should a New York court enjoin the distributor from continuing its Australian lawsuit?

Justice Saliann Scarpulla of the Commercial Division of New York County’s Supreme Court recently confronted this difficult question of international law in Madden International, Ltd. v. Lew Footwear Holdings Pty Ltd.. It was clear that Madden, a US company, had insisted on the New York forum and New York law provision in the contract. Instead of receiving the benefit of its bargain Madden found itself embroiled in a lawsuit in Australia, with Lew Footwear successfully arguing Australian law should be applied, and that the suit should go forward in Australia.