Articles Posted in Arbitration & Mediation

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In 2009, RNB and GAF entered into an agreement under which GAF would promote RNB’s “Roof N Box” product, a three-dimensional roofing model, to building construction contractors affiliated with GAF. The agreement required the parties to submit disputes “arising under” the agreement to arbitration. GAF terminated the agreement after about a year. In 2016, RNB, together with its founder and president, Evans, brought suit against GAF based on GAF’s activities in marketing its own product that competes with the Roof N Box. The complaint alleged design patent infringement, trade dress infringement, and unfair competition. GAF moved to dismiss or stay the action pending arbitration. The district court denied that motion. The Federal Circuit affirmed, stating that GAF’s assertion that the arbitration provision covers the claims stated in the complaint is “wholly groundless.” The complaint challenges actions whose wrongfulness is independent of the 2009 agreement’s existence. View "Evans v. Building Materials Corp." on Justia Law

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Muller, an employee of the U.S. Government Printing Office, is a union member. The union and GPO are signatories to a multi-party Master Labor Management Agreement, which creates a negotiated grievance procedure for GPO employees to contest adverse employment actions as an alternative to appeal to the Merit Systems Protection Board. Muller was reassigned within the GPO, resulting in demotion to a lower grade and a reduction in pay. Muller challenged his reassignment through the negotiated procedure. An arbitrator dismissed the grievance as “not arbitrable,” because a four-month deadline for holding a hearing, required by the agreement, had passed. The Federal Circuit reversed; the contractual provision does not require dismissal of the grievance in the event of noncompliance with the four-month deadline. The deadline is merely a nonbinding housekeeping rule to encourage timely arbitration, one that is addressed to the arbitrator as well as the parties. There is no past practice requiring dismissal under the circumstances of this case. View "Muller v. Gov't Printing Office" on Justia Law

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Appleberry worked for the U.S. Citizenship and Immigration Services, under a collective bargaining agreement. Deeming her performance unsatisfactory, the agency placed her on a “performance improvement plan” and then found that she failed to improve. Eventually, relying on that failure, the agency fired her. When Appleberry brought her removal to arbitration, as authorized (but not required) by the collective bargaining agreement, the arbitrator concluded that she could not challenge the key bases for the removal, i.e., the agency determinations that she should be placed on the performance-improvement plan and that she failed under the plan; that the collective bargaining agreement, pursuant to 5 U.S.C. 7121, prescribed the exclusive process, including time limits, for challenging those determinations; but that Appleberry had abandoned that process after initiating it through filing grievances, allowing the time for completing challenges to run. The arbitrator barred reconsideration of “issues that were raised in [her] earlier grievances, or that could have been raised but were not.” The Federal Circuit affirmed, rejecting an argument that the arbitrator should not have barred consideration of the performance-improvement-plan issues raised in her earlier, uncompleted grievances; the arbitrator properly enforced the grievance process designated as “exclusive” in the collective bargaining agreement. View "Appleberry v. Dep't of Homeland Sec." on Justia Law

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In 2013, the Department of Homeland Security issued a final decision removing Garcia from the U.S. Border Patrol for misconduct. Garcia received notice the same day. Under 5 U.S.C. 7121(e)(1), Garcia had the option to appeal his removal to the Merit Systems Protection Board (MSPB) or to invoke arbitration, under his union’s collective bargaining agreement (CBA). Article 34 of the CBA states that in cases involving adverse actions, such as removal, requests for arbitration “must be filed . . . not later than thirty (30) calendar days after the effective date of the action.” His union mailed a letter to the Agency requesting arbitration 28 days after the effective date of Garcia’s removal. The Agency did not receive this request until seven days later. After an arbitrator was appointed, the Agency moved to dismiss. The Arbitrator found the plain meaning of “filed” in the CBA requires actual receipt of the request for arbitration, relying on the definition of “file” used in federal court proceedings. The Federal Circuit reversed, holding that the request for arbitration need only be mailed within the 30-day time period. View "Garcia v. Dep't of Homeland Sec." on Justia Law

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Higbie, a Criminal Investigator for the U.S. State Department, contacted equal employment opportunity (EEO) counsel to complain of alleged reprisal by the Department for his activities, which he claimed were protected under the Civil Rights Act. Higbie successfully requested that his complaint be processed through the Department’s alternative dispute resolution program. Higbie repeatedly inquired whether the mediation proceedings would be confidential. State Department representatives confirmed that they would be. Higbie’s supervisors, including Cotter and Thomas, signed the mediation agreement, which included a confidentiality provision. The parties did not resolve their dispute through mediation. Cotter and Thomas provided affidavits to the EEO investigator that discussed Higbie’s statements in the mediation and cast his participation in a negative light. Higbie filed suit, claiming retaliation, discrimination, and violation of the Alternative Dispute Resolution Act. The district court dismissed the ADRA claim. Amending his complaint, Higbie alleged a claim sounding in contract for breach of the confidentiality provision. The Court of Federal Claims concluded that Higbie had not established that the agreement could be fairly read to contemplate money damages, and dismissed his complaint for lack of jurisdiction under the Tucker Act. The Federal Circuit affirmed. View "Higbie v. United States" on Justia Law

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CEATS filed a patent infringement suit against airlines and ticket agencies. After the parties failed to reach a settlement during court ordered mediation, a jury found that CEATS’s patents were infringed, but invalid. The Federal Circuit affirmed the finding of invalidity. While its first appeal was pending, CEATS filed sought relief from the judgment under FRCP 60(b) based on an alleged relationship between the court-appointed mediator and the law firm representing most of the accused infringers. The alleged relationship was brought to light in the unrelated Karlseng litigation. The district court denied CEATS’s Rule 60(b) motion. The Federal Circuit affirmed, stating that it disagreed with the district court’s finding that the mediator had no duty to disclose his dealings with one of the firms involved in the litigation, but that the three “Liljeberg factors” did not establish that this case presents an “extraordinary circumstance” where relief from judgment is warrantedView "CEATS, Inc. v. Cont'l Airlines, Inc." on Justia Law

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In 2006 InterDigital granted LG a license to certain patents concerning devices capable of wireless voice or data communications, including devices designed to operate in accordance with second-generation (2G) wireless standards and devices designed to operate in accordance with third-generation (3G) wireless standards. After the contract terminated, InterDigital filed a complaint with the International Trade Commission, claiming violation of the Tariff Act, 19 U.S.C. 1337, by importing devices that infringed patents relating to 3G wireless technology. The ITC terminated the investigation as to LG, based on an arbitration clause in the contract. The Federal Circuit reversed, holding that there was no plausible argument that the case arose from the patent license contract between the companies. View "InterDigital Commc'ns, LLC v. Int'l Trade Comm'n" on Justia Law

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In 1985, Behringwerke filed a U.S. patent application directed to the use of DNA sequences (enhancers) identified in human cytomegalovirus. An enhancer, when introduced into a cell that produces a drug, can enable the cell to produce the drug at a much higher rate. In 1992, Behringwerke and Genentech entered into a licensing agreement related to enhancers that matured into the patents-in-suit; for fixed annual payments, Genentech could practice the patents for research purposes. Genentech was to pay a royalty on sales of commercially marketable goods incorporating a “Licensed Product.” The Agreement, governed by German law, required that disputes be settled by arbitration. Behringwerke sold its pharmaceutical business to Sanofi, but the Agreement and patent rights stayed with Hoechst; both are German entities. In 2008, Sanofi sued Genentech for infringement based on sales of the allegedly infringing drugs Rituxan and Avastin, which Genentech had not identified as licensed products. Hoechst demanded arbitration before a European arbitrator. The district court found no infringement. The Federal Circuit affirmed. Arbitration continued. On remand, Genentech sought to enjoin Sanofi from continuing the foreign arbitration. The district court denied the motion, finding that Hoechst is a party to the arbitration, but not a party to the litigation and that an injunction would frustrate policies favoring enforcement of forum selection clauses, and would not be in the interest of international comity. The arbitrator determined that German substantive law, not U.S. patent law, would be used, that a drug could be a licensed article even though it did not contain the patented enhancers, if those enhancers were used in its manufacture, and that Genentech was liable for damages. The Federal Circuit affirmed that Genentech was not entitled to an injunction. View "Sanofi-Aventis Deutschland, GMBH v. Genentech, Inc." on Justia Law

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In 1996, RG, exclusive licensee of a German patent and corresponding patents in the U.S., Europe, and Japan relating to genetic identification, entered into a license agreement with Promega, granting Promega certain licenses. The agreement included a clause, providing that “all controversies or disputes arising out of or relating to this Agreement, or relating to the breach thereof, shall be resolved by arbitration” and prohibited assignment without consent. Assignments were approved in 2001 and 2003; a subsequent assignment from IP to LT was not approved. In 2008 LT believed that Promega was paying less than required royalties. Negotiations failed and LT demanded arbitration. Promega sought a declaratory judgment of non-arbitrability, alleging infringement of five patents and contenting that rights under the 1996 agreement had never been assigned to LT. IP then moved to compel arbitration. The district court ordered arbitration, finding that IP was the assignee, remained in existence, and that it was irrelevant that Promega alleged that IP was merely a puppet of LT. The Federal Circuit affirmed. View "Promega Corp. v. Life Tech. Corp." on Justia Law