Ethics in Commercial Mediation and Arbitration

Jason Russell is the leader of the Los Angeles Litigation Group and co-head of the West Coast litigation practice, representing a wide variety of clients in commercial litigation disputes in federal and state courts throughout the country as well as in international forums.

Mr. Russell has earned a reputation as an adept litigator with particular experience litigating some of the most high-profile cases in the sports and entertainment field, as well as complex class actions.

Mr. Russell has extensive experience in and takes an innovative approach to all aspects of complex litigation matters, ranging from jury trials and appellate arguments to mediation and arbitration. Among other accolades, the Los Angeles Business Journal named him to the 2020 edition of its LA500, recognizing the most influential people in Los Angeles, and as a Top Litigator and Trial Lawyer in Los Angeles in 2019. He also was named by the Daily Journal as one of the Top 20 Under 40 lawyers in the state of California and receiving the prestigious California Lawyer Attorneys of the Year (CLAY) award bestowed by the California Lawyer for “extraordinary achievements” in litigation. He repeatedly has been named as one of Who’s Who Legal’s Top Sports and Entertainment Lawyers and has been named as a Rising Star by Lawdragon.

Mr. Russell’s representations include a diverse number of high-profile disputes, including, among others:

• Credit Acceptance Corporation in obtaining summary judgment in the U.S. District Court for the Central District of California on antitrust claims by Westlake Services, LLC seeking approximately $1 billion in damages arising from the allegedly fraudulent acquisition of a patent that Westlake claimed precluded it from competing in the indirect auto lending market. The Daily Journal named the decision one of the Top Verdicts of 2017.
• Christie’s, Inc., as lead counsel, in obtaining the dismissal of a putative nationwide class action in the U.S. District Court for the Central District of California, by convincing the court to hold that the California Resale Royalties Act (CRRA) was unconstitutional. The CRRA previously had withstood several legal challenges until it was struck down in this case. The dismissal was affirmed by an en banc panel of the Ninth Circuit.
• Priceline.com in obtaining the 2017 reversal in the Fifth Circuit of an $84 million judgment for occupancy taxes allegedly owed for facilitating the renting of hotel rooms in 175 Texas municipalities. The court reversed and vacated the judgment, adopting all of Priceline’s arguments that an online travel company could not be liable for hotel occupancy taxes.
• The National Basketball Association in connection with its imposition of discipline against former owner Donald Sterling and in defending the NBA against claims brought by Mr. Sterling.
• MGA Entertainment, Inc., as a member of the trial and appellate team, in its highly publicized multibillion-dollar “battle of the dolls” trial against Mattel, Inc. over the rights to the “Bratz” doll franchise. The Daily Journal called the case one of California’s “hardest-fought and highest-stakes intellectual property trials in recent memory.” The Ninth Circuit’s decision to vacate a jury verdict in Mattel’s favor was named one of the Top Five Appellate Reversals of 2010 in California by the Daily Journal. On retrial, the jury rejected all of Mattel’s claims and awarded MGA $85 million in damages for theft of its own trade secrets, to which the judge added $85 million in punitive damages. The District Court also granted MGA one of the largest attorneys’ fees awards ever awarded under the Copyright Act.
• Red Bull North America and its corporate parent in the defense of multiple putative class actions across the country and in responding to congressional investigations into the energy drink industry.
• Estée Lauder, as lead counsel, in obtaining the dismissal of a series of national and California class actions relating to the marketing and packaging statements on cosmetics products that alleged violations of California consumer protection and unfair practices laws.
• Twenty-First Century Fox, Inc. as lead counsel in defense of $360 million in claims by the litigation trustee for Core Media, Inc.
• Head USA, Inc. in its successful defense of claims by Bode Miller and Bomber, LLC seeking to invalidate Head’s sponsorship agreements with high-profile athletes. The court granted Head’s motion to dismiss all of plaintiffs’ claims.
• MGA Entertainment, Inc., as lead trial and appellate counsel replacing MGA’s initial counsel, in defense of a copyright claim in the U.S. District Court for the Southern District of New York relating to the Bratz doll franchise, in which an artist claimed damages in excess of $100 million. He obtained summary judgment for the client, which was affirmed by the Second Circuit Court of Appeals.
• The underwriters of more than $15 billion of WorldCom, Inc. debt securities in more than 100 individual and class shareholder actions throughout the United States, in what was then the largest securities case ever filed. A precedent-setting victory was obtained in the U.S. Court of Appeals for the Second Circuit on behalf of the underwriting syndicate on an issue of first impression at the intersection of bankruptcy and securities laws.
• The National Football League in its defense of a $1 billion civil action brought by the Oakland Raiders, which resulted in a defense verdict for the NFL on all claims.
• Home Box Office in the successful defense of a bet-the-company challenge to on-location filming of HBO’s flagship original series “Entourage.” Skadden defeated motions for a temporary restraining order and preliminary injunction before obtaining the dismissal of the claims on the merits.
• True Religion Apparel, as lead counsel, in defense of a putative nationwide class action challenging the labeling and advertising of the client’s apparel. Mr. Russell negotiated a very favorable resolution of the action.
• BPL Films in successfully prosecuting claims under the Copyright Act to prevent the illegal sale and distribution of the movie titled “The Debtors,” in an action that Premiere magazine called “one of the wildest legal battles in Hollywood history.”
• The Stanley Works, as lead trial counsel, in its successful defense at trial of claims brought by a commercial supplier in a multimillion-dollar action.

Mr. Russell is actively involved in Skadden’s pro bono efforts, supervising junior associates and personally representing a number of individuals in criminal defense matters. He also serves as co-chair of the Los Angeles office’s Hiring Committee.

Virginia F. Milstead has a broad commercial litigation practice, representing clients in both federal and state courts, with a particular emphasis on securities and merger litigation, director misconduct and related claims.

Timothy G. Nelson represents clients in a variety of disputes involving cross-border and international law issues, including arbitration before several major international bodies.

Mr. Nelson represents clients before, among others, the American Arbitration Association/International Centre for Dispute Resolution (ICDR), the International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC), London Court of International Arbitration (LCIA), the International Centre for Settlement of Investment Disputes (ICSID) and tribunals constituted under the Arbitration Rules of the United Nations Commission of International Trade Law (UNCITRAL), and the federal and state courts of the United States.

Mr. Nelson’s international litigation and arbitration experience includes disputes involving contracts, international trusts, partnerships (limited and general) and corporate law, as well as cases falling under the 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG). Mr. Nelson has been involved in litigation arising under the U.S. Federal Arbitration Act (FAA), the Foreign Sovereign Immunities Act (FSIA), the Alien Tort Claims Act (ATCA), the Helms-Burton Act of 1996, Section 1782 (the cross-border discovery statute), the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1965 Hague Convention on Service of Process. Additionally, Mr. Nelson regularly advises sovereign and corporate clients on public international law issues, including under multilateral treaties, such as NAFTA; the Energy Charter Treaty (ECT) bilateral investment treaties (BITS); and other international trade/investment agreements. He is co-editor of Take the Witness: Cross-Examination in International Arbitration (2d ed. 2018) and the Journal of Enforcement of Arbitration Awards.

Mr. Nelson’s litigation and arbitration experience includes representing:

• a shareholder of the company operating the IndiGo airline in obtaining a 2020 order from the U.S. District Court of Maryland quashing a Section 1782 subpoena that had sought discovery and depositions from a third party in aid of an LCIA India arbitration between shareholders of the airline;
• Encana/Ovintiv, a Canadian energy company, in a dispute with Occidental Petroleum concerning the sharing of an ICSID award arising from Ecuador’s 2006 expropriation of Block 15 (an oil project in the Ecuadorian Amazon);
• financial institutions in connection with claims under the Helms-Burton Act (a statute purportedly aimed at allowing U.S. nationals to sue persons “trafficking” in assets expropriated by the Cuban government following the 1959 revolution);
• Dutch affiliates of Nextera in proceedings in the U.S. District Court for the District of Columbia to enforce a 2019 ICSID arbitration award of over €290 million against Spain, arising from violations of the Energy Charter Treaty;
• a Texas oil and gas company in an LCIA arbitration with a Southeast Asian company concerning post-closing disputes arising from a share purchase agreement, including disputes concerning the treatment of oil inventory, offshore reserves and calculation of working capital;
• Atlantic LNG Co. of Trinidad and Tobago in successfully defending against a $250 million claim by an affiliate of Gas Natural Fenosa in a UNCITRAL arbitration based in New York, involving a dispute concerning a long-term LNG supply contract with favorable merits and fees awards in October 2016 and March 2017;
• Castle Harlan in successfully defending a claim in New York’s Supreme Court by Norcast/Pala Group concerning the sale of a Canadian company to Bradken Ltd. of Australia;
• three claimants in an UNCITRAL arbitration against the Republic of India under the Mauritius-India BIT concerning an investment by investors in India’s satellite/space telecommunications sector. A Hague tribunal rendered a favorable merits award in August 2016;
• Devas Multimedia Pvt. Ltd., an Indian satellite and telecommunications company in an ICC arbitration against an Indian space agency regarding repudiation of a long-term satellite contract. A final merits award of over $670 million (plus interest) was issued in September 2015, and the award is currently subject to enforcement proceedings in federal court in Seattle;
• CIBC, in the case of Commonwealth of Northern Marianas v. Millard, in which the plaintiff, in a bid to enforce a large New York judgment, attempted to force a Canadian bank to identify and restrain assets allegedly held by its Cayman Islands subsidiary bank; the New York Court of Appeals held in 2013 that state judgment turnover/restraint proceedings cannot reach accounts in foreign subsidiary banks;
• SIFMA, in the case of Motorola v. Uzan, in submitting an amicus brief cited favorably by the New York Court of Appeals in its 2014 decision reaffirming the “separate entity rule.” Under this rule, even if a bank has a New York branch, state judgment turnover/restraint proceedings cannot reach accounts in foreign branches of that bank;
• the owners of Cemex Venezuela SACA, formerly Venezuela’s largest cement maker, in an ICSID arbitration against the government of Venezuela seeking compensation for expropriation of that enterprise;
• the general partner of the Hudson Waterfront LPs in successfully defeating Donald Trump’s 2005 New York State Supreme Court lawsuit, which sought to challenge the $1.8 billion sale of Manhattan’s Riverside Plaza to Extell Development Corporation and the Carlyle Group;
• the Argentine National Social Security Administration (ANSES) in its successful appeal from a New York federal court’s order freezing certain U.S.-based pension accounts, which had been the subject of a 2008 Argentine law directing private pension funds to be placed under ANSES administration. The Second Circuit held that the assets were covered by the FSIA and therefore could not be used to satisfy debts of the Republic of Argentina;
• the investors in Kardassopoulos and Fuchs v. Georgia, an ICSID arbitration against the Republic of Georgia involving expropriation of oil pipeline rights, including under the Energy Charter Treaty, the Greece-Georgia BIT and the Israel-Georgia BIT;
• the owners of debt issued by CIESA, one of Argentina’s largest energy companies, in New York Supreme Court litigation to enforce that indebtedness. This case was the winner of Latin Lawyer’s 2012 Deal of the Year Award in the disputes category;
• a Singapore investor, Cemex Asia Holdings Ltd., in an ICSID arbitration against the government of Indonesia, alleging violation of minority investment rights, expropriation of assets and breaches of the 1987 ASEAN multilateral investment protection treaty in connection with a cement operation in Indonesia;
• a Korean company in an ICC arbitration (Singapore seat) concerning franchising of store operations in the fashion industry;
• a Korean company in a SIAC arbitration against a U.S. party, governed by the CISG and related to the supply of high-performance engineering equipment;
• a shareholder of a major telecommunications company (with operations in Russia and elsewhere) in an M&A dispute, governed by UNCITRAL arbitration rules, with a Norwegian telecommunications company;
• a Canadian medical device company in an ICDR arbitration against its U.S. distributor;
• a U.S. mezzanine lender in an AAA arbitration by a would-be borrower who had sought funds to purchase a New Mexico oil and gas pipeline business; securing a New York federal court antisuit injunction to restrain the borrower’s attempts to bring claims in Texas state court (in violation of the parties’ arbitration agreement); successfully defeating the borrower’s appeal to the Second Circuit against the New York court’s order compelling arbitration; enforcing the AAA award (which rejected each of the borrower’s claims); and obtaining sanction against opposing counsel;
• a U.S. financial institution in a share valuation dispute with an agency of the government of Korea, resolved successfully by an ICC-appointed arbitrator;
• Spanish insurer Mapfre Empresas Compañía de Seguros y Reaseguros, S.A., securing forum non conveniens dismissal of a lawsuit brought against it in the Supreme Court of New York, New York County, by construction and engineering company Foster Wheeler Iberia;
• the Israeli owners of the Jerusalem Post in New York court proceedings ancillary to an ICDR arbitration in concerning ownership of that newspaper;
• a British Virgin Islands company in an action in New York’s Supreme Court concerning ownership of a Russian titanium company, successfully seeking a stay of all New York proceedings pending the result of a related arbitration before the LCIA;
• two German business executives who successfully challenged the jurisdiction of the U.S. District Court in New York to hear a claim against them involving alleged breach of a management buyout agreement;
• a Chinese-owned property company in a large ICDR hotel management arbitration in New York involving contract and accounting issues, fraud and RICO claims concerning hotels in North America, Europe and Australia; and
• a Kansas securities firm in its successful challenge to two successive $25 million punitive damages awards by a panel of NASD arbitrators.

Before joining the firm in 2000, Mr. Nelson practiced as a commercial litigation attorney at major law firms in England and Australia. He has been selected as a leading lawyer in Chambers Global, Chambers USA, Chambers Latin America, The Best Lawyers in America and Who’s Who Legal - Arbitration. Mr. Nelson also was selected by Benchmark Litigation as a 2016 Benchmark Litigation Star. Mr. Nelson also is a prize winner of the 2013 ILO Client Choice Awards in the New York arbitration category and the Burton Award for legal writing, and has been published several times in leading publications, including a leading treatise on serving foreign defendants from countries that are not party to the Hague Convention, “Overseas in Non-Hague,” in the New York Law Journal.

Betsy A. Hellmann is an experienced litigator with a focus in international dispute resolution.

Ms. Hellmann counsels clients in disputes with foreign counterparties in various industries, including oil and gas, construction, insurance, reinsurance, securities, and telecommunications, in communication with local counsel, foreign governments and regulators, and the media. She also advocates for clients before international and domestic arbitral tribunals as well as U.S. state and federal courts. Ms. Hellmann advises clients on enforcement of dispute resolution clauses, enforcing judgments domestically and abroad, obtaining discovery in foreign jurisdictions, and structuring transactions to secure favorable law and dispute resolution forum.

Noteworthy experience representing claimants includes:

• a French client in an ICC arbitration against a Brazilian state-owned entity for transfer of shares and damages;
• securing a $700 million (plus interest) award for Indian satellite and telecommunications company with U.S., German and other shareholders against Indian space agency in Delhi-seated ICC arbitration concerning repudiation of long-term lease agreement, including the enforcement of the award in courts in France, the U.K. and the U.S.;
• three Mauritius claimants in a UNCITRAL arbitration against the Republic of India under the Mauritius-India BIT in a Hague-seated arbitration concerning satellite/space telecommunications sector (favorable merits award issued August 2016), including the defense of the award in the courts of the Netherlands;
• an estate in connection with several real estate transactions, including in a 16-day federal jury trial against U.S. commercial bank in which the jury unanimously found for the estate on its fraud and RICO claims, resulting in release of guaranty and return of collateral;
• Brazil’s largest reinsurer in multiple actions to recover amounts due under certain global notes and securing judgments in excess of $100 million; engagement involved successful appeal to New York state’s highest court, an anti-suit injunction to enjoin competing Brazilian litigation, and sanctions against one of the recalcitrant debtors; and
• a Kuwaiti businessman in multiple jurisdictions in a dispute over the distribution of family assets.

Noteworthy experience defending respondents includes:

• successfully defending Western Hemisphere LNG producer against a $250 million claim by a major international energy company in a UNCITRAL arbitration based in New York concerning a long-term LNG supply contract;
• defending a Brazilian insurance company in a 90-day ICC arbitration arising out of a fire in the steam generation units of Brazilian aluminum plant, including U.S. confirmation and contempt proceedings;
• representing a multinational energy conglomerate in mediation and multiparty arbitration and litigation involving all aspects of the construction and operation of a 480MW power plant and associated pipelines in Brazil; disputes included a pricing dispute with the regulator, a dispute with the turbine manufacturer, a shareholder dispute concerning construction costs, and associated force majeure and insurance claims. The engagement involved working with a specialist engineering firm to evaluate construction claims, as well as analyzing construction contracts and fuel supply agreements;
• defending a major auction house in a dispute with a consignor concerning alleged $40 million guarantee (case trial ready);
• representing a shareholder of a Korean joint energy venture in an arbitral dispute concerning management of venture;
• defending a group of U.S.-based insurance agencies in a series of arbitrations before ad hoc tribunals against their former principal;
• representing a Western Hemisphere liquefied natural gas producer in an arbitral dispute with an energy multinational concerning purchase price adjustment;
• representing a Western Hemisphere liquefied natural gas producer in a dispute with an equipment supplier (expert resolution); and
• defending a U.S.-based reinsurer in an arbitration with a transaction counterparty concerning post-closing matters.

Lectures and Presentations

• “Special Elements of Enforceable Awards,” JURIS Third Annual Conference on Enforcement of Arbitration Awards, Boston, September 2019
• “Career Paths in Arbitration,” Harvard Law School/BIAC/Arbitral Women, Boston, September 2019
• “Arbitration: Where Does it Belong and Not Belong?” ABA Conference, New York, May 2019