Tolu Adetayo

Parties choose arbitration because they don't want courts to decide the case. So judges should defer to arbitrators except where they lack jurisdiction or are guilty of gross procedural error. The merits are to be left to the arbitrators--right? English arbitration provides a partial counterexample to this standard story. By default, it's possible to appeal from an English award to the High Court on an issue of English law where the arbitrators got it obviously wrong, or where the issue is of general public importance and there's serious doubt about the answer. Allowing English courts to set precedents for future cases is considered valuable in some global industries (e.g. shipping and commodities). If you don't want appeals on issues of law, you can exclude them. One way to do that is to agree to arbitration under (say) ICC or LCIA rules. These rules say that the parties waive court review to the extent permissible by law. But what if you want to broaden the circumstances where an appeal on an issue of law is permissible? That's possible too. Section 69(2)(a) says an appeal on an issue of law can be brought "with the agreement of all the other parties to the proceedings". That agreement could be expressed in advance via the arbitration clause. Take a look at this portion of an arbitration clause in a case decided last month, Eronat v CPNC International (Chad) Ltd & Anor [2024] EWHC 2880 (Comm). The parties chose LCIA rules but purported to override the finality provision: "(a) In the event that the arbitration tribunal has materially erred in fact and/or law, the Parties are entitled to appeal the decision of the arbitration tribunal to a court in England provided that such appeal is brought within thirty (30) days after the decision is rendered." In this case, the appeal didn't get off the ground because it was brought too late. I'm still interested in looking at the clause. It clearly widens the availability for appeals on issues of law. A losing party won't have to seek leave of the court to appeal and can appeal on ANY issue of law. The clause also allows for an appeal in the event that the tribunal has materially erred in fact. That's an unusual thing to agree. It would seem to allow a losing party to go court for a "do-over" of the arbitration. And I don't think it's possible. The principle of party autonomy suggests that it should be. But under s 1(c), the courts can only intervene where authorized by the Arbitration Act. The grounds for setting aside an award are limited. Error of fact is not one of them. (The same is probably true under the UNCITRAL Model Law. There may be some state arbitration laws in the USA that allow the parties to opt in to factual review of awards; under federal law it's not even possible to opt in to review of errors of law). Questions: 1. Can you interpret the Arbitration Act to permit the parties to opt in to judicial review of the facts? 2. Why would parties want to agree to that?

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Bombshell case for the corporate defense bar! A District Court has found the qui tam provisions in the False Claim Act to be unconstitutional because (in the court's view) the executive branch could not delegate its prosecutorial power to a private citizen. No doubt we will see an appeal. If the case makes its way to the Supreme Court, the District Court may be upheld. In 2023, the Supreme Court noted in dicta that: • "The FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone." • "[T]here is good reason to suspect that Article II does not permit private relators to represent the United States’ interests in FCA suits." United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 451 (2023). One argument in favor of preserving the qui tam provisions is that sections 3729-3733 of the False Claims Act do contain a provision allowing the government to dismiss a case under the act that it does not deign to join. Expect a lot of Amicus Briefs in this case!

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As an in-house counsel, do you feel your work is undervalued because you are not seen as a revenue-generating department within the organization? I am sure we have all felt this way at some point in our careers. If you are experiencing this, here’s a practical approach you can use. Make it a habit of documenting your achievements, whether on a daily or weekly basis. Understand how your achievements have moved the organization closer towards its goals or have helped the organization achieve its goals. Then, present these contributions to your supervisor or management (as the case may be) in a clear and concise manner. Have you ever felt undervalued as an in-house counsel? How did you handle it? #valuecreation #costoptimization #profitoptimization #inhousecounsel #riskmanagement

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Want to sound erudite? Begin your next memo or brief with: "The Federal Circuit’s decision that the PTO is not subject to notice-and-comment requirements when issuing rules pursuant to 35 U.S.C. § 2(b)(2) conflicts with this Court’s interpretive precedents applying the anti-superfluity cannon." What's this really about? Whether you have to tell the U.S. Patent and Trademark Office (PTO) your home address if you apply for a trademark as an individual and your physical office address as a business. I have bumped into this issue directly in the past year. Even if the Supreme Court agrees to hear the case, I expect there is a low likelihood that the PTO will change its requirements even if it is required to take notice and comment before the rulemaking because the PTO need only show that its rule is not arbitrary and capricious. The PTO will argue that checking domicile helps prevent fraud and that's a good enough (non-arbitrary and non-capricious) reason. So what's the solution for those who want to protect their physical address from the PTO? A giant trademark owning entity that licenses the trademarks out to the "real" trademark owners. It will be just like MERS for mortgages. You read it here first....

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Restitution  Legal Term of the Week #legalprocess #courtorder #legaldocuments #courtcase #litigation #avielavenantelawpractice #law #aalawsng #nigerianlawfirm #nigerianlaw #crime #restitution #criminallaw #legal #lawandorder

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BREAKING NEWS: Latest status report on copyright lawsuits v AI companies. 📰 4 new lawsuits = 24 total lawsuits May 8 hybrid hearing on MTD in Andersen v Stability AI: you can attend via Zoom 🏎️ Link in article below 👇🏽 Judge Tigar cancels hearing on MTD in Doe 1 v Microsoft. Who does that favor?

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NY General Obligations Law 5-1401 has achieved legendary status in choice-of-law circles. It requires NY courts to enforce NY choice-of-law clauses in high-dollar-value commercial contracts. In today's post, John Coyle argues that while the statute serves a useful purpose, it can undermine the ability of other sovereigns to apply their own law to persons and events within their borders. In some cases, this is a good thing. In others, it is not. https://lnkd.in/dqqx6hpK

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In this week’s Federal Circuit decision *Contour IP Holding LLC v. GoPro, Inc.*, the court reversed a prior ruling that invalidated Contour's patents under the Alice test. This decision offers important insights for in-house counsel: ### Differences from Previous Rulings - **Focus on Claim Elements:** Unlike earlier decisions that broadly categorized software as abstract, this ruling highlights the necessity of evaluating claim elements individually and as a combination to determine if they transform an abstract idea into something patent-eligible. - **Inventive Concept Requirement:** The court reiterated that an inventive concept must be more than a mere instruction to implement an abstract idea on a computer. It must involve more than conventional activities. ### Takeaways for Patent Drafting and Prosecution - **Detailed Claim Drafting:** Ensure that claims clearly articulate how the invention provides a technical improvement or solves a specific problem, moving beyond abstract ideas. - **Strategic Claim Composition:** Consider the ordered combination of claim elements to ensure they collectively contribute to a patent-eligible application. https://lnkd.in/eEgqDzig

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"Material Adverse Event" (MAE) clauses typically allow a party to back out of a deal when certain bad things happen. The clauses come in different shapes and sizes and they have been much litigated in M&A disputes in the courts of Delaware. But why should the Delaware courts have all the fun? We're now getting more of these cases in the London courts. Last week, in BM Brazil I Fundo De Investimento Em Participações Multistrategia v Sibanye BM Brazil (Pty) Ltd, [2024] EWHC 2566 (Comm), Mr Justice Butcher rejected buyers' attempt to invoke an MAE clause in a 79-page judgment. The case is about two mines in Brazil: a nickel mine called Santa Rita Mine and a copper and gold mine called the Serrote Mine. The sellers agreed to sell the companies that owned the mines for $1 billion. The two Sale and Purchase Agreements (SPAs) were signed on 26 October 2021, with the transaction expected to close in January 2022. The English-law-governed SPAs included MAE clauses stating that the buyers wouldn't be obligated to close if there had been an MAE. The relevant definition of an MAE was as follows: "'Material Adverse Effect' means any change, event or effect that individually or in the aggregate is or would reasonably be expected to be material and adverse to the business, financial condition, results of operations, the properties, assets, liabilities or operations of the Group Companies, taken as a whole." (As is common, this definition was followed by a long list of "carve-outs", one of which was briefly discussed in this case). On 9 November 2021, there was a "geotechnical event" at the Santa Rita mine. I'll confess that I haven't waded through all the technical detail about this event and I won't pretend that I would understand it anyway. But, in essence, following a blast as part of mining operations, a large body of rock shifted 2 meters. The event involved a rock mass with a volume of approximately 120,000m³ to 170,000m³. The buyers refused to close, saying that the geotechnical event was a Material Adverse Event. The judge did not agree and has found the buyers liable to pay damages. One general point of interest concerns the implications of "revelatory events" for MAEs. Claimants said that the geotechnical event revealed bigger problems at the mine. One question was whether the discovery of these alleged bigger problems could count as an MAE. The judge said "no", because any such problems already existed at the time of the SPA. So the bigger problems weren't a "change, event or effect". The judge also considered what would count as a "material" adverse event. He took a firm view that materiality was to be assessed by looking at the effect on the target's equity value. He thought 20% would be enough, that 15% "might well be" enough, but that in the circumstances of this case 10% probably wouldn't be enough. Under any of these thresholds, the geotechnical event wasn't enough to qualify as an MAE.

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BREAKING NEWS: Judge Chhabria reluctantly grants plaintiffs motion for more discovery time in Kadrey v Meta after David Boies firm takes lead for plaintiffs. Joseph Saveri firm still part of legal team. Lieff Cabraser Heimann & Bernstein, LLP, who represents Authors Guild in SDNY and Farnsworth in a case related to Kadrey, could become co-class counsel with Boies firm. See below: ORDER. For the reasons stated on the record at today's hearing, the plaintiffs' motion to extend the case schedule is reluctantly granted. The new fact discovery cutoff will be December 13, 2024. The hearing on dispositive motions with respect to the named plaintiffs' claims will take place May 1, 2024 at 10 a.m. in Courtroom 4. The parties shall meet and confer about all surrounding dates and submit a stipulation regarding those dates within 7 days of this order. The parties are urged to bring any significant discovery disputes to Judge Hixson's attention sooner rather than later. The plaintiffs in the Kadrey case are ordered to confer with the plaintiffs in the Farnsworth case to discuss whether: (1) the case should be consolidated, with the Boies firm and the Cabraser firm serving as co-lead counsel; or (2) the Farnsworth case should be stayed pending adjudication of the Kadrey case. Within 7 days of this order, the plaintiffs in the two cases should either submit a joint letter or competing letters setting forth their positions. The Court understands Meta's position, but Meta is also free to file a letter if it wishes. Signed by Judge Vince Chhabria on 10/4/2024. (This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc2, COURT STAFF) (Filed on 10/4/2024) (Entered: 10/04/2024)”

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Are you interested in pursuing an LL.M. degree in the United States? If so, then we invite you to join us for our Information Session "Pathways to Study and Practice Law in the U.S. as a Foreign Lawyer." 🗓 October 10 ⏰ 12:30 PM Follow this link to register: https://bit.ly/3ZXEeCD During this session, we will answer common questions from foreign lawyers including: ✅ What is the difference between an LL.M., a J.D. and an S.J.D.? ✅ Which option is best for me? ✅ Can I use my foreign law degree to practice law in the United States, including in Florida? ✅ What is the bar exam in the U.S., and what do I need to do to take it? ✅ Are there options for improving my English before beginning the LL.M. Program? This presentation will take about 90 minutes, followed by an interactive Q&A session.

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