Lance sues for bonus

"B. Lafferty" wrote in message
ink.net...

"Joseph Hurley" wrote in message
...
Again, as an attorney, I have to respond to some of these claims.

"The first step will most likely be to ask the court to dismiss
Armstrong's action and compel the parties to proceed with arbitration."

That's not how it works. The defendant files a motion to refer the
matter for arbitration. The plaintiff has an opportunity to oppose that
motion, on whatever grounds. If the court grants the motion, the case is
NOT dismissed, but is placed in hold pending the results of arbitration.
Each party then picks an arbitrator, and the two pick a third. They then
conduct hearings.

That depends on the jurisdiction. I've had two cases dismissed with orders
to proceed to arbitration pursuant to the contractual arbitration clause.



The arbitrators will file a report proposing certain findings of fact and
a resolution with the court.

The defendant will file a motion to confirm the arbitrator's decision;
the plaintiff will file an opposition to that motion and a motion to
reject the decision and place the case on the trial list. The court will
then decide if the arbitrator's decision was reasonable under the
evidence presented.

There are genrally four reasons for an arbitration award to not be confirmed
as a judgment. The Federal rule is virtually the same for most state
proceedings.

FAA § 10(a) provides four limited bases, which have been described as

"grudgingly narrow" (Eljer Mfg. Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1253

(7th Cir. 1994)) for vacating an arbitral award: (1) the award was procured
by

corruption, fraud or undue means; (2) there was evident partiality or
corruption

by the arbitrators; (3) there was arbitral misconduct, such as refusal to
hear

material evidence; or (4) the arbitrators exceeded their powers, or so
imperfectly

executed their powers that they failed to render a mutual, final and
definite

award.



Only after the court approves the decision does it become a judgment of
the court.

"Armstrong now faces an insurance company with deep pockets that is not
going to pay out $5 million without an interesting discovery process
first."

If the defendant seeks to enforce the arbitration provision of the
contract, there will be NO discovery. Discovery is ONLY conducted in the
context of a case going to a trial. Not relevant in the context of
arbitration. So I'm confused by this statement, as it is inconsistent
with the prior one.

That will depend in part on the terms of the arbitration agreement. If the
agreement referrs to the FAA, as many do, there may well be "discovery."

FAA Section 7 expressly provides arbitrators with the authority to issue
subpoenas to compel the attendance of witnesses and the production of
documents at an arbitration hearing. Section 7 does not expressly provide
that arbitrators may compel pre-hearing discovery from third-party
witnesses, but the weight of authority interprets the section to authorize
subpoenas to compel pre-hearing document production. See, for example,
American Federation of Television and Radio Artists AFL-CIO v. WJBK-TV, 164
F.3d 1004, 1009 (6th Cir. 1999).



Second, what kind of discovery process? What is the insurance company
going to ask for? Medical records, ok. Does ANYONE think that if Lance
was using banned substances he would be stupid enough to see his regular
doctor and thereby leave a paper trail lying around in his medical
records? come now. They can't ask for records that don't exist.
Further, if the discovery process devolves into a fishing expedition,
there is a remedy for that -- Armstrong's lawyers can file motions to
quash the interrogatories that are not relevant to the issues in the
case.

Medical records can show many things. The Walsh book notes that Armstrong
may have made an admission to his treating cancer physician that he used
performance enhancing drugs. That admission, if it was made, might well be
reflected in his medical record. Would the company have issued its poliy
had that been known?

As we know from the tests instituted by the French cycling authorities for
the purpose of "health profiling," certain anomalies indicative of illegal
drug use can be detected. That could well be in his medical record.

If the paper trail doesn't exist, why not provide the medical recods that he
has, with a confidentiality agreement or order? Seem like an easy way to
collect $5 million.

More important will be the testimony of Emma O'Reilly, if the insurance
company can convince her to come an testify at an arbitration hearing.
Amrnstrong's joining her in an action in France might have ****ed her off
enough to accept a Texas insurance company's offer of plane tickets hotels
and meals.



If Armstrong's lawyers are smart. they will oppose any discovery having
to do with medical records on the basis that the Tour de France
organization having determined that, under its rules, Lance won the race,
that is conclusive on the question of whether he won legitimately. (This
whole story sounds like Gore suing Bush saying he should be collecting
the annual Presidential salary and not Bush.) You can only demand
through discovery two types of things: (a) things that would be
admissible as evidence in the trial of the case or (b) information that
is likely to lead to items that would be admissible as evidence. Medical
records based on a claim that Lance's win is illegitimate does not fall
under either of those. (See my other post, wherein I explain that the
issues in this case are limited to whether he DID win under the rules in
effect at the time of the race, not whether he should have won or won
"fairly" in some generic sense.)

If the insurer presses this, they will end up losing a lot of money,
because if Lance gets his case to a jury in TEXAS, well, I wouldn't want
to be the insurers' lawyer.

Arbitration awards are not confirmed by a jury. A judge makes a
determinaton to confirm or not.



"And if there is a finding against Armstrong, look for the matter to be
turned over to a DA for possible prosecution for insurance fraud
dependent on what evidence is taken at the arbitration hearing."

More evidence that the author does not know how arbitration works. There
is no "record" as there is in a court trial. There is no transcript of
proceedings. There is no court reporter or stenographer. The only
document available at the end is the arbitrator's report.

If you bother to check the case law, you will see that arbitration
transcripts are prepared all the time and are subject to review in relation
to the four grounds for overturning an arbitration award set forth above.
See, eg.

NO. COA99-878
NORTH CAROLINA COURT OF APPEALS
Filed: 29 August 2000
SHIRLEY S. CARPENTER, DIANE CARSON, and SHAWN COLVARD,
Plaintiff-Appellees,
v.
GEORGE BROOKS, SALOMON SMITH BARNEY, INC., PINNACLE GROUP, INC., and LEGG
MASON WOOD WALKER, INC.,
Defendant-Appellants.
Appeal by defendant corporations from order entered 16 April 1999 by Judge
James U. Downs in Graham County Superior Court. Heard in the Court of
Appeals 8 May 2000;



SHIRLEY S. CARPENTER, DIANE CARSON, and SHAWN COLVARD, Plaintiff- Appellees,
v. GEORGE BROOKS, SALOMON SMITH BARNEY, INC., PINNACLE GROUP, INC., and LEGG
MASON WOOD WALKER, INC., Defendant- Appellants

No. COA99-878

(Filed 29 August 2000)


........In their motion to vacate the arbitration award, plaintiffs alleged
that the panel was hostile toward them, was partial toward defendants, and
refused to hear or consider relevant evidence. After a hearing on the
motion, and after considering "the arguments of counsel, the pleadings in
this case, the entire transcript of arbitration proceedings conducted under
the offices of the National Association of Securities Dealers Inc., as well
as the briefs of the part[ies]," the trial court made a number of
unexceptionable findings of fact tracking the history of the case, then made
the following additional findings:
9. During the hearings before the Arbitration Panel, the
panel members collectively harassed and badgered the Plaintiffs, their
witnesses and their counsel.

10. Members of the Arbitration Panel repeatedly expressed
negative opinions about the Plaintiffs' claim[s] throughout the arbitration
proceedings..........;



http://www.cmd.faa.gov/LR-Sams/M-035...4/035-4-02.htm

Most contracts specify that the cost of the hearing, including transcripts,
is divided equally between the FAA and the union. The American Federation of
Government Employees (AFGE) contract has several differences including an
optional mediation prior to arbitration, and the entire cost of the
arbitration is paid by the loser. Grievance arbitration awards are final and
binding as long as they are not contrary to law or are not deficient on some
other very limited grounds.



The only issue will be as to the confidentiality of the transcripts.
Confidentiality may not apply to the revelation of criminal acts.