Legal Question in Intellectual Property in California

Re: Collaboration agreement dispute

There is a line of case law on this subject. Our office has recently argued two similar situations and in both cases were able to prevail to overcome the arbitration clause because all necessary parties could not be forced to arbitrate simultaneously. Your intuition is correct, but this may require filing suit and a motion in order to force all disputes to be resolved together.

Re: Collaboration agreement dispute

This is simpler than Ms. Cowin's response suggests; perhaps she thought the ex-fiance was not a party to the contract containing the arbitration clause. Code of Civil Procedure section 1280(e) provides:

(e) �Party to the arbitration� means a party to the arbitration agreement:

(1) Who seeks to arbitrate a controversy pursuant to the agreement;

(2) Against whom such arbitration is sought pursuant to the agreement; or

(3) Who is made a party to such arbitration by order of the neutral arbitrator upon such party's application, upon the application of any other party to the arbitration or upon the neutral arbitrator's own determination.

As a party to the arbitration, 1280(e)(3) allows you to add your ex to the arbitration upon "application." In this context, the application would be made to the arbitrator after his or her appointment, but before any proceedings begin. If the arbitrator finds that the ex is indeed a party to the contract, I'd say the arb has no choice but to join him as a party and later serve him with notice of when and where the arbitration will take place.

If a party to an arbitration fails to show up and participate, an award against him will nevertheless be valid and can be confirmed and entered as a judgment IF the arbitration agreement is "self executing," meaning it specifies the rules under which the arbitration will be conducted (such as the American Arbitration Association) and those rules allow for "ex parte" proceedings and awards. Otherwise, it may be advisable to obtain a court order compelling Mr. ex to arbitrate under CCP 1281.2.

This sounds like an interesting case, and if you need to retain a lawyer to orchestrate Mr. ex's participation, I think I could do that for you effectively and economically.

Re: Collaboration agreement dispute

At this point, given that the CA has not performed as expected, I believe you can make a quantum meritum argument and claim the CA has already been paid for any work performed on your and your ex's behalf.

Arbitration is a venue used to reduce expenses because litigating in the California courts is very expensive. Even so, the remedies in arbitration are the same as those in a court of law, unless changed by the arbitration agreement. Therefore, before you become deeply involved in

trying to sort out whether or not arbitration is appropriate, I believe you should look at the arbitration agreement and see if it defines any specific remedies for breach. Likewise, you should look over all the contracts.

Without looking at the contracts themselves, it is almost impossible to guage an outcome. Even if the CA wins her case in arbitration, in view of my earlier statements, you will be able to look to your ex for contribution, if he actually has any assets worth pursuing. Further, the CA is only entitled to payment for her contribution. If she has not contributed, no payment is owed.

Perhaps in view of the costs involved, you might offer a mimimal settlement of $500 or so, unless you believe the CA filed the suit maliciously.

In some circumstances where your attorney may request a judgement of attorney fees against your CA. In such an instance it is to your benefit to seek an experienced attorney in contract law, not intellectual property.

I regret that I cannot be more specific. However, I have not seen any of the agreements signed; I an uncertain whether or not you were represented when you signed the arbitration agreement; I do not know who drafted the agreements; and lastly I am not a contract attorney.