WHEN LAWYERS AND ENGINEERS
COLLIDE
THE RESOLUTION OF TECHNICAL
AND SCIENTIFIC BASED DISPUTES
The Alternative Dispute Resolution Section of the
State Bar of Arizona
And
The Arizona State University Center for Law,
Science & Innovation
Agenda
•
Greetings and Overview
–
•
Resolution Issues and Impediments in Specific Areas
–
•
• Environmental -- Bob Copple
• Intellectual Property – Michael Lang
• Construction / Transportation – Ruth Franklin
• Public Utilities – Kris Mayes
• Governmental Parties and Regulators – John Godec
Panel Discussion – Commonalities and Distinctions
ADR Processes, Techniques and Solutions
–
•
Gary Marchant and Bob Copple
Panel Discussion
• Pre Litigation Phase
• Litigation Phase
Reception Immediately Following the Program
Slide 2
Resolution Issues and Impediments in
Environmental Disputes
Scenario
• Large Hazardous Waste Spill (CERCLA or OPA)
• Multiple Potentially Responsible Parties
• Multiple Federal and State Regulators
• Legions of Experts For
– Each Party
– Each Regulator
– Each Effected Medium (i.e., Air, Water, Soil)
• Direct Impact on Public and Public Resources
• Numerous Related and Conflicting Actions and
Claims
Slide 3
…
The Whack-A-Mole World of
Environmental Disputes
Citizen
Suits
Political
Pressure
Private
Personal &
Economic
Injury
Claims
Conflicting
Cleanup
Standards
PRPs
&
Regulators
Legions of
Competing
Experts
Related
Federal
State
Actions
Inter PRP
Claims
Insurance
Coverage
Litigation
Technical and Scientific Complexity
• Trustee Experts, Agency Experts, RP Shadow
Experts, RP Testifying Experts, etc.
• Studying Complex Environmental Systems
• Using Wide Variety of Methods from Direct to
Ethereal
• All Looking at Broad Questions of Injury,
Restoration and Compensation
• Results in a Wide Range of Conclusions and
Opinions
Slide 5
Types of Intellectual Property (“IP”)
•
•
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Trade secrets
Copyright
Trademarks/Domain names
Patents
Licenses
© Michael J. Lang 2011
Slide 6
mlang@ngtechlaw.com
ADR Advantages/Disadvantages for
IP Disputes
• Advantages in general
–
–
–
–
–
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Cost
Speed
Finality of decision
Control of trade secrets and company records
Knowledge/control of Arbitrator(s)
Discovery unknown to other potential
infringers
– Basis of decision unknown to other potential
infringers
– Can settle by agreement and/or license
– Bridging multi-national disputes (WIPO)
© Michael J. Lang 2011
Slide 7
mlang@ngtechlaw.com
ADR Advantages/Disadvantages for
IP Disputes
• Disadvantages in general
–
–
–
–
–
–
–
–
–
–
Both sides must agree to ADR
No appeal; has no precedent
No special damages
No injunctions
No attorneys’ fees
Surrender Federal Jurisdiction
No holding of IP to be valid and enforceable
Knowledge/control of Arbitrator(s)
Enforcing ADR decision or settlement agreement
Litigating the issue may be the outcome
© Michael J. Lang 2011
Slide 8
mlang@ngtechlaw.com
U.S. Patents
•
•
•
•
•
•
•
•
•
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Most IP attorneys advise against ADR for patent infringement
Establishment of “Rocket Dockets”
Trade secrets safe & limited PR
Limited discovery
No Markman hearing; Arbitrator(s) interpret(s) patent claims
No juries
No appeal to Fed Cir. (about 50% reversal rate)
Δ losses claims for: rule 11; abuse judicial sys; malicious
prosecution; inequitable conduct
Π losses claims for: willful infringement; injunctive relief; special
damages; and a holding of valid and enforceable
Settlement agreements on courthouse steps
© Michael J. Lang 2011
Slide 9
mlang@ngtechlaw.com
Construction
• Complexity:
– Number of decision makers
– Diversity in professions
– Number of solutions
• Science may not be well understood by
advocates and some decision makers
• Differing standards for establishing
responsibility
– Customary rather than empirical
Slide 10
Transportation
• Political and Governmental Influences
– Budgetary Constraints
• Scientific Consensus
• Large numbers of potential
stakeholders
– Difficult to identify
– Shifting desire to engage over multiple
years
Slide 11
To Settle or Not to Settle:
Impediments to Multi-Party
Resolution of Utility Ratecases
and Other Matters Involving
Public Utilities
Kris Mayes
Director, Program on Law and
Sustainability at the ASU Sandra Day
O’Connor College of Law
Slide 12
Utilities and Settlement
• It starts with the constitution: Arizona is one of the
only states in the nation in which the public utility
commission (ACC) is a branch of the government
(Article 15).
– Constitution and case law establish a strong
preference for stringent review of utility filings and
applications for rate increases.
– Additionally, Arizona is one of the few states where
Commissioners are elected, meaning that the
Commissioners feel a special obligation to their
constituents to vet cases, and to do so in a way
that demonstrates thoroughness.
– For Commissions, their Staff, and even the utilities,
this has almost universally been accomplished
through a fully litigated rate case, pre-hearing data
requests (sometimes in the thousands), pre-filed
testimony and the use of expert witnesses.
Slide 13
•
•
•
Utilities and Settlement
Settlement agreements are often eschewed by Commissioners
 can be a general feeling of abdication of duties.
SA’s also not encouraged in the past by Staff for similar reasons.
– Staff members of PUCs are motivated by working in the
public interest; most view their jobs as watchdogs for the
public, working to ensure that every angle has been
thoroughly analyzed before sending a case to the
Commissioners for their approval.
From the utilities’ standpoint, Settlements can cut both ways.
– They can take less time, leading to ratecase expense
savings (fewer attorneys fees, expert witnesses required),
and limiting the regulatory lag that can cut into revenues and
earnings.
– But Settlements can involve giving up a lot, in particular if
multiple parties are in the room demanding specific
concessions (environmental clean-up, renewable energy
advancement, etc.)
Slide 14
Utilities and Settlement
• Advantages of Settlements in the Age of New
Energy:
– Offers an opportunity for a growing set of
stakeholders (solar developers, installers,
energy efficiency companies,
environmentalists, merchant gas generators,
etc) to be involved in the process in a way that
almost ensures their issues will be addressed
by utilities and the Commission.
Slide 15
Utilities and Settlement
• How to make it happen?
– Commissions and utilities that have little to
no experience with Settlements need to
get one or two under their belts.
– Utilities could be encouraged by the
Commission, to propose a Settlement in
the first instance, especially in complex
cases that will draw in multiple
Parties/Intervenors.
– Some cases will never be appropriate for
Settlement.
Slide 16
Government Inertia and
ADR / Settlement Paralysis
Virtually All Agencies Operate Under a Direct or Indirect Mandate
to Use ADR, But the Process Often Discourages Actual
Application:
•
Perceived Need to Adhere to Policy and Check All of the
Regulatory Boxes
•
Precedent -- Develop, Bolster, Protect
•
Inter Agency Bureaucracy & Conflicts
•
Political Pressure -- Lawmakers, Constituents & Interest
Groups
•
All of Which May Conflict with Public Interest in Expedited
Cleanup and Resource Restoration
Slide 17
Government ADR Proclamations
and Limitations
APA 5 USC 572
•
General authority
•
(a) An agency may use a dispute resolution proceeding for the resolution of an issue in
controversy that relates to an administrative program, if the parties agree to such
proceeding.
•
(b) An agency shall consider not using a dispute resolution proceeding if-•
(1) a definitive or authoritative resolution of the matter is required for precedential value,
and such a proceeding is not likely to be accepted generally as an authoritative precedent;
•
(2) the matter involves or may bear upon significant questions of Government policy that
require additional procedures before a final resolution may be made, and such a proceeding
would not likely serve to develop a recommended policy for the agency;
•
(3) maintaining established policies is of special importance, so that variations among
individual decisions are not increased and such a proceeding would not likely reach
consistent results among individual decisions;
•
(4) the matter significantly affects persons or organizations who are not parties to the
proceeding;
•
(5) a full public record of the proceeding is important, and a dispute resolution proceeding
cannot provide such a record; and
•
(6) the agency must maintain continuing jurisdiction over the matter with authority to alter
the disposition of the matter in the light of changed circumstances, and a dispute resolution
proceeding would interfere with the agency's fulfilling that requirement.
•
(c) Alternative means of dispute resolution authorized under this subchapter are voluntary
procedures which supplement rather than limit other available agency dispute resolution
techniques.
Slide 18
Public Participation
Public sentiment is everything. With
public sentiment, nothing can fail;
without it nothing can succeed.
- Abraham Lincoln
Slide 19
Public Participation
I do not represent public opinion: I
represent the public. There is a wide
difference … between the real
interests of the public and the
public’s opinion of those interests. I
must represent … real interests of the
whole people.
- Theodore Roosevelt
Slide 20
Public Participation
Slide 21
The End of Nuclear Power?
• Fukushima Daiichi Nuclear Complex
• 104 Operating Plants in the U.S. –
many near population centers and fault
lines
• USNRC Poised to Approve 20 New
Reactors
Slide 22
Even if the risk of catastrophe is tiny,
“the worst-case scenario is so dreadful
as to be unthinkable.”
- The Week
- The Washington Post
Slide 23
Energy Source Risks
• Oil Rigs Blow Up and Spill
• Coal Mines Collapse and Kill Miners
• Wind Mills & Solar Panels Consume
Massive Land Mass
• NIMBY
Slide 24
Energy Source Risks
Fossil Fuel Emissions Kill 2-million
people annually - far more than “all
nuclear incidents worldwide,” including
Chernobyl.
- Chicago Tribune
Slide 25
Public Participation
Impediments/Chronic Conflict
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•
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Loss of trust and credibility
People stop listening to each other
Blame the adversary
Fixed and simple convictions are
displayed
• Questions become rhetorical
Slide 26
ADR Processes:
Transportation
• ADR Early and Often
– Public engagement with science
before planning through completion
• Mediators and Facilitators involved
from the start
– Facilitated partnering during
installation
– Dispute Resolution Boards before
completion
Slide 27
ADR Solutions:
Transportation
• Facilitate scientists working
collaboratively
– Elemental building blocks of the
solution
• Mediate the emotional
components
• Creative use of peer reviews
Slide 28
ADR Solutions:
Construction
• Building knowledge in the ADR
professional
• Reframing the issues to best address
what the parties really want
• 80/20 Certainty and Informed Decision
Making:
– Identify known variables, ranges
– Envelop of reasonableness
Slide 29
ADR Processes:
Construction
• Blended ADR Programs:
– Facilitate to keep communications
open
– Neutral Fact finders
– Mediate
– Arbitrate
• Combinations
Slide 30
Public Participation
Some Solutions
• Risk communication -- a two-way
exchange of information about threats
and consequences
– Enhances knowledge and understanding,
builds trust and credibility, encourages
dialogue, and influences attitudes,
decisions, and behavior
• Move people from positions to
interests
Slide 31
IP example: Domain Names
• Hypo: A party is using your Registered
Trademark of DRINK ONE as domain
names www.drinkone.com and
www.drink1.com, what can you do?
• Anticybersquatting Consumer Protection
Act (ACPA) 15 USC §1125(d)
• Uniform Domain-Name Dispute
Resolution Policy (UDRP) ICANN
agreement w Registrar
© Michael J. Lang 2011
Slide 32
mlang@ngtechlaw.com
IP example: Domain Names
• ACPA
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Federal Jurisdiction
Actual damages or statutory damages
Can collect attorneys’ fees
Injunction to transfer domain name outside
US
– Transfer of domain name to trademark
owner
– Expensive and long timeline
© Michael J. Lang 2011
Slide 33
mlang@ngtechlaw.com
IP example: Domain Names
• UDRP
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Fast (about 2 months)
Cheap ($1500 for 1 name; 1 panelist)
Domain name locked by registrar upon notice
No discovery or hearings; supplement @ panel
discretion
No damages or attorneys’ fees
Only remedy: cancellation or transfer of domain
name
Decisions: available to public; have no precedent
Can be appealed; Jurisdiction: where registrar is
located
© Michael J. Lang 2011
Slide 34
mlang@ngtechlaw.com