FedArb, a Silicon Valley-based alternative dispute resolution firm, was recently involved in helping bring to resolution a $1 billion-plus cathode ray tubes antitrust tech dispute that expanded to over 50 parties and United States international jurisdictions. The lawsuit was filed in 2007, and pursuing the typical litigation path proved challenging: one judge fell ill, another retired. And nearly 10 years later, it was finally resolved using a “gig judiciary.”
In 2013, the court designated a retired federal judge as a special master and discovery disputes were fast-tracked, a calendar system designed for complex arbitrations was deployed, and FedArb was engaged to support the special master by administering all aspects of the case, which by then included some 150 lawyers in the U.S., Europe and Asia, and more than 100 different motions. Once the discovery process was completed, the parties considered going to trial but ended up choosing mediation, and a dozen separate mediations followed, including one in which a settlement totaling over half a billion dollars was reached.
Kennen Hagen, president and CEO of FedArb, and Jay Weil, COO and co-founder of FedArb, sat down with Inside Counsel to discuss the case. According to Hagen, the appointment of a special master is becoming more common in complex civil matters, though it is far from being the norm. A prominent example of this in the Northern District of California is the Uber/Waymo litigation where U.S. District Court Judge William Alsup appointed John Cooper, a partner at Farella Braun + Martel, to oversee all discovery matters.
“FedArb’s work with the special master was somewhat unique, with the decision largely driven by the stature and experience of Judge Walker. FedArb’s logistical expertise and back office services kept the parties on a tight timetable and enabled the litigants to focus on important legal issues,” he explained.
The two most significant challenges FedArb faced in handling this matter, per Weil, included: First, with respect to the discovery issues, the problem was one of massive logistics given the number of parties involved; and second, with respect to the settlement/mediation, the issue was successfully conducted over a dozen separate settlement talks.
“On the defendants’ side, the biggest risk of taking the case to trial was a runaway jury with the potential for punitive damages. On the plaintiffs’ side, the biggest risk was a jury verdict of minimal damages or, even if there were substantial damages, another decade of appellate procedures before they got paid,” said Hagen.
So, what kind of complex civil disputes are most appropriate for being resolved through mediation?
According to Hagen, the most appropriate complex civil disputes that lend themselves to mediation are those where the parties are ready to entertain mediation discussions, and this often means that big issues have already been resolved through discovery or preliminary motion practice.
Amanda G. Ciccatelli is a Freelance Journalist for Corporate Counsel and InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more.