Second Circuit Denies En Banc Rehearing of Stored Communications Act Decision in Microsoft Case
Advertising Litigation Report: Vol. 2, No. 1
We have been at the forefront of the constantly growing field of Alternative Dispute Resolution (ADR). We believe that many forms of ADR — ranging from mediations and nonbinding neutral evaluations to “mini-trials” and binding arbitration — can be important tools to further our clients’ interests. While ADR is not always appropriate or even possible, our clients often benefit from less public, more relaxed, potentially less bitter forms of dispute resolution — particularly where there are long-standing relationships to preserve.
Every partner in the Litigation Department and several partners in our Paris office have participated as advocates in numerous arbitrations, mediations and other ADR proceedings. We are ready to advise our clients of the many alternatives and to help them to choose wisely and have deep experience both in domestic and international arbitrations.
We strongly believe that the most important time to think about ADR is before a dispute arises. Our firm litigators work closely with our corporate colleagues at the contract negotiation stage to ensure that any ADR provision is appropriate to the client’s needs. We are conversant with the vast array of devices that can be employed in the crafting of an arbitration clause — such as predetermining the nature and amount of discovery, employing special procedures such as reviewing accountants or neutral appraisers to resolve specific types of disputes, providing continued jurisdiction to a single arbitrator over the life of a long-term contract, agreeing to de novo judicial review of an arbitrator’s conclusions of law (where permitted), and so forth. Perhaps more importantly, we are aware of the pitfalls that each such innovation can involve.
Our late partner Marvin Frankel, a former U.S. District Judge, was one of the nation’s most distinguished ADR neutrals. Carrying on his tradition, members of our Department often serve as arbitrators, mediators, and neutral evaluators. We are represented by Charlotte Moses Fischman and Michael Oberman on the Commercial Arbitration Panel of the American Arbitration Association. Mr. Oberman is also on the AAA’s Large, Complex Commercial Case Panel and Commercial Mediation Panel; the CPR Panel of Distinguished Neutrals (International Institute for Conflict Prevention and Resolution, of which the firm is a Sustaining Member); and the mediation panel of the U.S. District Court for the Southern District of New York. He is a Fellow of the College of Commercial Arbitrators.
Reflecting our strong commitment to ADR, Kramer Levin was one of the first signatories of the CPR’s “Pledge.” In recognition of the foregoing, we subscribe to the following statements of policy on behalf of our firm.
"First, appropriate lawyers in our firm will be knowledgeable about ADR. Second, where appropriate, the responsible attorney will discuss with the client the availability of ADR procedures so the client can make an informed choice concerning resolution of the dispute."