Vol. 16

February 2007

In this issue:

Litigation in the Construction Industry
A General Counsel’s View

News from the Courthouse — ADR Update: Class Action Waivers in Arbitration:
A License to Engage in Illegal Activity?
By Pat Siuta

Henning Neutral Profile
Who Has Time for a Hobby?

Henning and Our Neutrals in the News

Litigation in the Construction Industry—A General Counsel’s View

Any business that directly affects the public can be a target of litigation. When that business also involves vehicles – lots of them, the possibility of litigation becomes even more prevalent. Perhaps second only to the medical field, contractors involved in road construction are faced with intense scrutiny. William B. Miller, general counsel of APAC, Inc., knows this scrutiny firsthand. APAC companies operate throughout the southeast and mid-continent. They perform everything from road widening to massive bridge building. Although employment fluctuates, APAC has had up to 8,000 employees, most directly involved with construction and up to 12,000 vehicles in its fleet – from company trucks that employees use as their vehicles to huge excavators.

The types of cases coming across Miller’s desk fall into primarily three areas:

1. Personal injury claims. “Obviously with as many vehicles as we have on the road and with our project sites being driven through by the general public daily coupled with the varying levels of expertise of the driving public, accidents occur in our workzones,” says Miller.
2. Contractual issues. Most APAC work is executed for a government entity on projects in which schedules and quality can be critical. Miller notes, “We see the normal contractual issues – issues about schedule delays, disputes with sub-contractors regarding quality, etc.”
3. Human resource/ employee issues that come from a large diverse workforce.

“I believe in mediation because when used correctly it allows the two sides, not just the opposing attorneys, to interface meaningfully for the first time,” he says. Both sides get to see the big picture and for the first time get a good grasp of the law as it applies to the other side of a case. In addition, it is an opportunity to sit across the table and humanize the process. This is important for us because as a large company, we make a big target. In mediation, suddenly it’s not just a big bad company without any interest in the plaintiff’s welfare but a company of people trying to do the right thing, with legitimate reasons or policies that can be explained face-to-face.”

Importantly, it’s the first time, and sometimes the only time, when someone is in a position to say they are sorry. That can go a long way to accomplishing a successful settlement. The real focus of mediation should be to communicate effectively with the other side. It may be your only chance to do that in a non-adversarial role.”

Tangential to this philosophy, Miller only uses outside counsel when it makes geographic sense because he feels that the company counsel can more easily be perceived as a spokesperson and is in a better position to explain company policies and procedures that might affect the case. “Even when we use outside counsel, we lead the team and manage the case. We feel this makes it much more effective. For one thing, our personal involvement indicates to the other party that we are taking the case seriously.”

Miller is adamant that the mediation process works best when it is not approached as an adversarial situation. “I think that’s one of the mistakes advocates make, treating the process as adversarial and seeing the mediator as a judge they have to win to their side, instead of seeing mediation as an opportunity to understand the other side’s position.”

News from the Courthouse — ADR Update: Class Action Waivers in Arbitration: A License to Engage in Illegal Activity?

Numerous companies have adopted arbitration clauses that include a class action waiver.  These waiver clauses have come under attack in federal and state courts.  Although the majority of courts that have considered the issue have enforced the waiver and held that they were not unconscionable, two state courts recently found them to be unconscionable and unenforceable.  The Oregon Court of Appeals said that “the class action ban . . . gives defendant a virtual license to commit, with impunity, millions of dollars' worth of small-scale fraud.  . . .  Although the arbitration rider with majestic equality forbids lenders as well as borrowers from bringing class actions, the likelihood of the lender seeking to do so against its own customers is as likely as the rich seeking to sleep under bridges.”  Vasquez-Lopez v. Beneficial Oregon, No. A125270, Jan. 31, 2007.  Just a few days before that decision the Wisconsin Court of Appeals held that a class action waiver in a credit card agreement was unconscionable and therefore unenforceable.  Coady et al. v. Cross Country Bank, Court of Appeals No. 2005AP2770, Jan. 25, 2007.  Both cases involved consumers, and courts typically scrutinize arbitration clauses in consumer and employment cases in a different manner than those contained in commercial contracts.  More litigation is likely as the use of arbitration clauses in consumer agreements continues to increase.

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Henning Neutral Profile - Pat Jones

Who Has Time for a Hobby?

Aged 18, 16, 13 and 12, respectively, Sarah, Christie, P.J. and Timmy participate in swimming, fast-pitch softball, baseball, tennis and football, to name just a few of their interests. Son P.J. was adopted from Korea at five months of age. Sarah is also in the Performing Arts Magnet Program at North Springs High School, and one of her productions, Urinetown, the Musical, was performed in Scotland last summer. Sarah gets her “performance genes” from wife Kim who has performed in the Onstage Atlanta production of “Nunsense,” as well as the Atlanta Bar Association production of “A Courthouse Line VI: No Business Like Law Business.” As a result of their interest in the performing arts, Pat and Kim both served on the Board of Directors of Onstage Atlanta for several years.

“I’m currently coaching Timmy’s baseball team and Christie’s fastpitch softball team. I played baseball at Wake Forest so I actually know a little bit about those sports. Thank goodness the kids haven’t gotten into something like lacrosse or soccer, which I know nothing about!” says Jones.

Between watching and coaching his children’s teams and performances, there is little time for Jones’ own hobby, golf. However, he and his twin brother Pete, a Virginia attorney, won their flight in the Ansley Golf Club Member-Guest tournament in 2005 after playing in it for 21 straight years without success.

Jones followed his B.B.A. from Wake Forest with a law degree from Emory University. But his career has taken some unusual turns. In addition to having practiced law as a partner at three Atlanta law firms, Jones holds a CPA certificate and was  not just Chief Legal Officer, but also Chief Financial Officer, of PTEK Holdings (n/k/a/ Premier Global Services) In addition,  he serves on the Board of Directors of a technology company in Mississippi and the Board of Visitors of the Calloway School of Business and Accountancy at Wake Forest University. He’s also active in Peachtree Road Methodist Church where he has taught Sunday School and is a member of the Administrative Board and Staff Parish Committee.

For more information on Pat Jones, go to www.henningmediation.com.

Table of Contents

Henning and Our Neutrals in the News

Henning neutral William S. Goodman spoke on “Pre-Suit Mediation” at the “Winning Settlement Demand Packages” CLE seminar January 12, 2007 at the State Bar of Georgia Conference Center.

Goodman will also be speaking at the General Practice & Trial Section Institute of the State Bar of Georgia being held at The Amelia Island Plantation on Thursday through Saturday, March 15-17, 2007. He will be speaking on “Mediating a Road Wreck Case.”

Rex D. Smith, Henning neutral, was a speaker at the 2007 Atlanta Risk and Insurance Management Society, Inc. (RIMS) Educational Seminar held January 18-19, 2007 at the Cobb Galleria Centre.

Smith also spoke on "Mediation in the Workers' Compensation Arena" at the State Bar of Georgia seminar February 6, 2007 at the State Bar of Georgia Conference Center.

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