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Thomas W. Hayton
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Practice Pointers for Counsel in Mediations
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Mediation
Arbitration and Special Master Services
General Mediator Disclosures of Phil Cutler
Mediator Profile Phil Cutler
Representative Mediations Phil Cutler
General Mediation Requirements
Memorandum to Clients: Information Concerning our Upcoming Mediation
Practice Pointers For The Lawyer Advising Clients In Mediation A Mediator's Perspective
Private Mediation Agreement
Record of Preliminary Hearing Form
Exhibit To Third-Party Subpoenas
Agreement Regarding Mediation Confidentiality And Role Of Mediator
General Arbitrator/Special Master Disclosures of Phil Cutler
Arbitrator/Special Master Profile Phil Cutler
Representative Arbitrations Phil Cutler
I Am Your Abitrator. Here Is What To Expect From Me... And What I Expect From You.
Private Arbitration Agreement

Telephone: 206-340-4600
1191 Second Avenue, Suite 1650

Seattle, WA 98101
Facsimile: 206-340-4646

PHILIP E. CUTLER
"Practice Pointers for Counsel in Mediations"

PRINCIPAL AREAS OF PRACTICE
Litigation and counseling in business, corporate and commercial law; business-government relations; licensing, trade secret and intellectual property law; antitrust and trade regulation matters. Arbitration, mediation and other forms of dispute resolution. Appellate practice.

PROFESSIONAL EMPLOYMENT
Cutler Nylander & Hayton (and predecessor firms)
Seattle, Washington
Shareholder, Director and President
1990 - Present
Sax and MacIver/Karr Tuttle Campbell
Seattle, Washington
Partner/Shareholder (Firms merged their practices in January 1986)
1979 - 1989
Perkins Coie
Seattle, Washington
Associate
1973 - 1979

EDUCATION
Northwestern University, Chicago, Illinois 1970 - 1973
School of Law: J.D. with Honors, June 1973. Staff Member (1971-72) and Editor-in-Chief (1972-73) of Journal of Criminal Law and Criminology. Published: Comment, The Evidentiary Value of Spectrographic Voice Identification, 63 J. Crim. L.C. & P.S. 343 (1972).
Georgetown University, Washington, D.C. 1966 - 1970
College of Arts & Sciences: A.B. (History), June 1970. Active in student government; member of Admissions Committee. Summer and school year employment as Special Assistant to U.S. Sen. Charles Percy (Illinois).

PROFESSIONAL LICENSES
Admitted to the Bar: Washington State (1973); U.S. District Courts -- Western District of Washington (1973); Eastern District of Washington (1979); Northern District of California (1985). U.S. Court of Appeals for the Ninth Circuit (1991). U.S. Claims Court (1976). U.S. Supreme Court (2006).

SELECTED PROFESSIONAL ACCOMPLISHMENTS
Litigation and Appellate Practice

Succeeded in obtaining vacatur of $23 million default judgment (2007); faulty substitute service. Vacatur order on appeal to Washington Court of Appeals Division III. Case on the merits proceeding to trial (now scheduled for Winter 2009).

Arbitration counsel (2005-2006) for claimant in breach of contract/fiduciary duty/good faith-fair dealing case involving respondent's refusal to remit commission splits under written contract and respondent's disbursement of commission revenues to himself and his associates. After 3-day hearing, arbitrator entered award in client's favor of $601,000, including pre-award interest, all costs and 95% of attorneys' fees.

Special litigation counsel (2003-2006) to receiver of defunct securities company in suits to recover fraudulent transfers and on promissory notes. State court granted receiver summary judgment in fraudulent transfer case; case (2003); one suit on promissory notes settled in mid-six figures (2004); obtained 6-figure default judgment in another case (2004); summary judgment granted client on borrower's claims that note and deed of trust was void (2004) and recovered mid-6-figures in deed of trust foreclosure (2005).

Retained (2001 - 2005) by national securities brokerage firm to represent new broker-employees in breach of contract/trade secret misappropriation actions brought by former employers. Defeated former employers' attempts to obtain TROs from NASD/court.

Represented prison-based water-jet cutting company in constitutional, antitrust and public disclosure claims by competitors arising from the client's participation in the Washington Prison Industries Program. Public disclosure claims resolved in client's favor (1999 and 2004); antitrust claims voluntarily dismissed (2000). Constitutional claims dismissed on summary judgment by the trial court. Washington Supreme Court affirmed (Washington Water Jet Workers Assn v. Yarbrough, 148 Wn.2d 403 (2003)), then reversed on reconsideration (151 Wn.2d 470 (2004)). Plaintiffs' antitrust, consumer protection and tortious interference claims under fourth amended complaint dismissed on summary judgment; on appeal to Washington Court of Appeals Division I (2006-2007).

Retained (2003) to represent minority owner plaintiffs in federal and state court appraisal/breach of fiduciary duty suits against majority owners of cellular telephone partnerships. Cases dismissed on summary judgment. Trial court affirmed by Washington Court of Appeals Division I ( Wn.App. (2006)) and 9th Circuit Court of Appeals ( F.3d (2007)).

Retained (2003) to represent Russian joint stock company plaintiff in federal court trademark infringement lawsuit against U.S. company. Claims settled within 3 months.

Retained (2002) to represent Hawaiian videographer in federal copyright infringement action. Jury awarded client $170,000+ in statutory damages after 7-day trial (April 2003). Thereafter, court awarded client $240,000 in attorneys' fees and costs. Case settled on appeal.

Arbitration counsel for joint venture partner in arbitration (2002) over buy-sell provisions of LLC agreement, alleged trade secret misappropriation, and tortious interference. Claims of other joint venture partner rejected.

Retained (2002) to represent clients in reciprocal cybersquatting/metatagging federal trademark infringement case. Case settled (May 2003) after mediation and resolution of dispositive motions.

Retained (2000) to represent interests of U.S. company and its employees and Chinese parent corporation in misappropriation of trade secrets lawsuit brought by former employer of employees. Case settled within a month.

Special disciplinary counsel for Washington State Bar Association in case against lawyer for trust account violations. After a 3-day hearing (2000), Hearing Officer suspended the lawyer for one year. WSBA Disciplinary Committee reduced punishment to 6 months suspension. Washington Supreme Court affirmed. In re McKean, 148 Wn.2d 849 (2003).

Retained (1999) to prosecute claims of 6 dealers against manufacturer for wrongful termination, Washington Franchise Act violations, federal antitrust (tying) claims. After 10 day arbitration, Panel issued mid 6-figure award (2001) in favor of clients for wrongful termination and Washington Franchise Act violations.

Represented (1997-98) defendants and their former counsel in Federal Trade Commission's contempt of court claim following settlement of FTC pyramid-scheme case by Consent Decree. Defeated FTC's claim for criminal contempt against defendants and for civil contempt against their counsel; civil contempt against defendants forestalled for eight months.

Retained (1997) by major national mortgage lender to defend class action lawsuit challenging document preparation fees as unauthorized practice of law and unfair and deceptive practice under Washington's Consumer Protection Act. Case settled (1999) for nominal amount.

Retained (1999) to defend class action lawsuit against major national automobile insurer claiming attorneys' fees for insured's recovery of Personal Injury Protection payments for benefit of insurer. Case settled (1999) on terms favorable to client. Retained (2000) as local counsel for same insurer in class action lawsuit seeking diminution-in-value damages under UIM portion of policy.

Retained by major national provider of ADR services to prepare amicus curiae brief to Washington Supreme Court in case involving the scope of judicial review of arbitration awards. Court unanimously decided case favorably to client's position; 4-Justice concurring opinion adopted the legal arguments made in amicus brief. Boyd v. Davis, 127 Wn.2d 256 (1995).

Trial and appellate counsel to landowner in state court zoning/environmental challenge to thoroughbred race track. Washington Supreme Court dismissed citizen group's appeal. CAPOW v. Northwest Racing, 126 Wn.2d 356 (1995). Related federal court environmental challenge voluntarily dismissed following plaintiff's failure to obtain preliminary injunction.

Trial counsel for former employee of publishing company in damages phase of lawsuit brought by former employer for tortious interference with former employer's business arising from client's departure and establishment of competing business. After 7 day trial (1993), court rejected former employer's claim for 7-figure damages and awarded $1 nominal damages only; obtained $16,000 in discovery abuse sanctions against former employer.

Selected by major Washington bank to defend it in $1 million loan guaranty suit by Japanese trading company. Architect of successful litigation/negotiation strategy leading to de minimis settlement (1987).

Advised and represented banks, trustees in bankruptcy and other creditors in loan workouts, liquidations, reorganizations, receiverships, and related business litigation (1980-present).

Retained as chief trial counsel by Northern Idaho developer on eve of Idaho state court jury trial of complex commercial and antitrust lawsuit against ski area developer and private utility operator. Settlement achieved after 3 weeks of trial (1992).

Represented major insurance company in successful 7 day trial (1990) of suit against former agent for trade secret misappropriation and enforcement of confidentiality agreement and non-compete covenant. Obtained high 5-figure judgment for attorneys' fees.

Represented trademark and copyright owners in infringement and licensing litigation; principal counsel for plaintiff in license termination litigation, resulting in negotiation of new license, pre-paid royalty (1985-90).

Major pre-trial and trial responsibility for defense of seller of glass business in technology/trade secret misappropriation litigation. Motion for directed verdict granted after seven weeks of trial, upheld on appeal to Washington Supreme Court. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38 (1987).

Retained by hops cooperative to negotiate global settlement of brewers' and dealers' claims for 7-figure UCC cover damages following loss at trial of 3 cases. Developed strategy that resulted in settlement of all cases/claims on terms favorable to client, permitting client to distribute greater amount of assets to members in liquidation.

Trial and appellate counsel for milk cooperative in five-week antitrust jury trial. Adverse jury verdict unanimously reversed by Washington Supreme Court. Bar-T Ranch Dairy v. Consolidated Dairy Products, 97 Wn.2d 167 (1982).

Principal responsibility for defense of beef packer in civil antitrust litigation 1977-80 and related federal grand jury investigation. No indictment returned; civil suit settled on favorable terms. See Golob & Sons v. Schaake Packing Co., 93 Wn.2d 257 (1980).

Business and Government Relations

Principal outside general counsel to major consumer electronics manufacturer and supervised law firms' work for client (1982-90). Prepared and annually reviewed all domestic and international product distribution contract documents for client; advised client regarding significant domestic and international marketing and pricing decisions and programs.

Outside general counsel (since 1992) to seller of specialized computer software and hardware packages. Advice and counsel to client in restructure of corporation; preparation of corporate documents, shareholder buy-sell agreement; assistance to client in securing bank and investor financing; negotiated pre-litigation settlement with principals' former employer over business tort/trade secret misappropriate claims.

Outside general counsel to start-up "brew-on-premises" business (1994-98). Represented client in negotiations with state Liquor Control Board and federal Bureau of Alcohol, Tobacco & Firearms over licensing of client's business, leading to first-ever U-Brew license awarded by state; advice and counsel to client in corporate, business, and licensing matters.

Represented landowners in protracted inverse condemnation action; negotiated settlement with municipality resulting in municipality's acquisition of clients' properties at favorable price and terms (1995). Represented (1997) unrelated landowner in sale of large tract to same municipality for park purposes; developed and implemented zoning-change and complex trust transfer strategies that resulted in favorable sale price and tax-advantaged terms for client.

Represented fireworks industry in suit successfully challenging administrative regulations adopted by state agency (1997); assistance to industry in amicus letter to State Attorney General concerning municipal responsibilities under 1995 revisions to state fireworks code resulting in favorable Attorney General Opinion (1995); continuing advice and counsel with respect to state and local legislative matters involving fireworks.

Represented Fortune 500 telecommunications company in successful contract negotiations and resolution of related dispute with large city government (1991).

Outside general counsel to 16,000-customer public water district (1990-92, 1994-96). Advised District and Board of Commissioners on all important matters, including preparation of non-standard resolutions, preparation of contracts, interface with Washington State Auditor, compliance with state law concerning conduct of public meetings, involvement of District and staff in political matters.

Special counsel to private, proprietary post-secondary educational institution in accreditation negotiations and licensing litigation with Washington state agency and federal Department of Education (1991-93). Obtained agency rules change benefitting client and accrediting commission; architect of successful litigation strategy resulting in potential savings to client of over $1.5 million in dispute with federal Department of Education.

Alternative Dispute Resolution (ADR)
Arbitration

Member of American Arbitration Association Commercial Panel since 1992, Large Complex Commercial Disputes Panel since 1999. Service as sole arbitrator or member/chair of 3-arbitrator panel in over 100 cases. Member of AAA arbitrator training faculty since 1998.

Member of CPR Institute arbitration panel since 2003.

Member of FINRA (formerlly NASD) Public Arbitrator Panel since 1996. Service as sole arbitrator or member/chair of 3-arbitrator panel in over 20 cases.

Member of NYSE Public Arbitrator Panel since 2006.

Member of King County Superior Court Arbitration Department register of arbitrators for statutory mandatory arbitration cases since 1982. Service in over 100 cases.

Numerous private arbitration appointments in commercial cases.

Arbitrator profile and representative arbitration assignments reflected on separate ADR profile.

Mediation

Member of U.S. District Court/Western District of Washington register of mediators/arbitrators since 1982. Service as mediator in over 200 cases.

Member of American Arbitration Association's Northwest Mediation Panel since 1997. Service as mediator in over 100 cases.

Mediator profile and representative mediation assignments reflected on separate ADR profile.

Special Master and Specialized ADR Assignments

Appointed (December 2000) Special Master by San Francisco County (CA) Superior Court to oversee implementation and administration of class action settlement in Weyerhaeuser Hardboard Siding Class Action litigation. Settlement claims period runs to December 2009.

Appointed (May 2001) Special Discovery Master by King County (WA) Superior Court in complex multi-party securities case (Kirlan Venture Capital, Inc. v. Regis).

Mediator/arbitrator (1997-1999) for claim arbitrations under class action settlement agreement in Louisiana-Pacific Inner Seal Siding Litigation (by appointment of U.S. District Court/District of Oregon).

Mediator/arbitrator (1999-2000) for Prudential Life Insurance Co. Class Action Remediation Plan (AAA-administered).

PUBLICATIONS

Author: "I am Your Arbitrator...," (private, 2002-2007) (also available on AAA's Neutrals Training website, www.adr.org); "Representing Clients in Mediation: A Mediator's Perspective," Dispute Resolution Magazine (ABA Dispute Resolution Section) (Spring 2003); "Who Owns the Expirations?" The Broker, 55/3:16 (July-August 1992); numerous publications in connection with Continuing Legal Education programs sponsored by the American Bar Association, Federal Bar Association of the Western District of Washington, University of Washington Law School, Washington State Bar Association, Washington State Trial Lawyers Association.

Contributing author: ADR Deskbook (1998 Supp.) (WSBA, 1998); Doing Business in Washington (WSBA International Law Section, 1997, and Supp. 2003); Washington Pattern Jury Instructions - Misappropriation of Trade Secrets/Tortious Interference with Economic Relations (6A Washington Practice, Washington Supreme Court Committee on Jury Instructions (West 1997)); Antitrust Evidence Handbook (ABA Section of Antitrust Law, 1991); Washington Antitrust Law Developments (WSBA Section of Antitrust Law, 1985); Washington Consumer Protection, Antitrust and Unfair Business Practices Law Developments (2nd) (WSBA Section of Consumer Protection, Antitrust, and Unfair Business Practices, 1988) and 1993 Supplement (same, 1993).

MAJOR PROFESSIONAL ACTIVITIES

Long-standing continuing membership in American Bar Association (Antitrust; Dispute Resolution; Litigation Sections Chair of Membership Committee of Dispute Resolution Section 2002-present; active in Civil Practice & Procedure Committee of Antitrust Section, 1980-90); Washington State Bar Association (Consumer Protection, Antitrust and Unfair Business Practices Section; Litigation Section; Dispute Resolution Section (Chair, 1998-99; Mandatory ADR Court Rule Task Force (principal drafter of Task Force Report, submitted 1997)); ADR Committee, 1999-present; Special Disciplinary Counsel, 2003); Federal Bar Association of the Western District of Washington (Trustee 1998-2000; Court Congestion/ADR Committee (chair, 1985-95, co-chair 1996-1998); member of FBA ADR Task Force, 1994-95)); and King County Bar Association (Trustee of ADR Section, 1997-present, Chair, 2002-2003; numerous committees and special projects).

Member, Washington Supreme Court Pattern Jury Instruction Subcommittee on Commercial/Business Litigation (1994-1997); U.S.D.C., Western District of Washington Civil Justice Reform Act Advisory Group (1998-2003); 9th Circuit Standing Committee on ADR, Ninth Circuit Judicial Council (1997-present).

Member, CPR Institute for Dispute Resolution (2003-2006); American Arbitration Association Commercial Arbitration Panel (1992-present), Mediation Panel (1997-present), Large Complex Commercial Case Panel (1999-present); FINRA (formerlly NASD) Public Arbitrator Panel (1996-present); NYSE Public Arbitrator Panel (2006 - ); King County Superior Court Arbitration Department Register of Arbitrators for Mandatory Arbitration Cases, 1982-present. Court-approved Arbitrator (1992-present) and Mediator (1982-present), U.S. District Court/Western District of Washington. Judge Pro Tem, King County Superior Court (1993-1995).

Member, ADR Roundtable, informal association of select Seattle lawyers practicing ADR (1997-present; vice-chair, 1999-2000; chair, 2000-present) (more information available on www.adrroundtable.com). Co-chair, Pacific Northwest Economic Region (PNWER) Dispute Facilitation Service Project (2000-2002).

Lecturer at and/or program chair for numerous continuing legal education programs sponsored by the American Bar Association Section of Antitrust Law/Civil Practice & Procedure Committee (summary judgment; evidence); University of Washington CLE Department (trade secrets and non-competition agreements in the insurance industry; ADR); Washington State Bar Association (Sections on Antitrust (antitrust; product distribution), International Law (product distribution; negotiating and structuring the international transaction), and ADR (negotiation; mediation; arbitration); King County Bar Association (various, principally ADR); Federal Bar Association of the Western District of Washington (federal practice and procedure; ADR); U.S. Department of Justice Office of Legal Education (mediation). Guest lecturer on alternative dispute resolution and business law at Seattle University Law School and University of Washington; negotiations at San Diego State University EMBA program.

PEER RECOGNITION/AWARDS & HONORS

ADR All Star, WSBA Dispute Resolution Section (1998-2002); Super Lawyer, Washington Law & Politics (1999-2008); Who's Who in America; Who's Who in American Law. Rated AV by Martindale-Hubbell Law Directory.

COMMUNITY SERVICE

Co-founder (1974) of Country Doctor Community Legal Clinic, the first free volunteer neighborhood legal clinic in Seattle. Originally sponsored jointly by the King County Bar Association and CHOICE churches, the program spawned numerous other neighborhood clinics and the network of 13 clinics is now jointly sponsored by KCBA's Committee on Neighborhood Legal Information & Referral Clinics and the City of Seattle.

Active in the affairs of St. Patrick Parish, Seattle (1974-82) and St. Joseph Parish, Seattle (1982-present). Service to the Catholic Archdiocese of Seattle on matters pertaining to governance and education (1979-92). Active in Cursillo Movement (1975-85).

Service to St. Joseph School, Seattle, as Co-President of the Parents Club (1984-86) and as a member of the School Advisory Board (1985-88). Director, St. Joseph Endowment Fund, 1986-2001; St. Joseph Parish School Fund, 1990-2001; President of combined Funds (approximately $1.5 million endowment at 12/31/01), 1993-2001.

Director, St. George School (Seattle) Endowment Foundation (approximately $225000 endowment at 12/31/01), 1994-2002; Secretary, 1996-2002.

Service to Bishop Blanchet High School, Seattle, as a member of the School Advisory Board, 1991-2000. Member of the Development Committee since 1992; active in Blanchet's "Brave Future In Focus" $4.1 million capital campaign (1995-98) and follow-up $4 million capital campaign (2002-present).

Active in the YMCA "Indian Guides/Indian Princesses" program for young boys and girls and their fathers, 1980-84; service as Chief of the Husky Nation, 1982-84.

President of the Georgetown Club of Washington, 1980-86; member of the Club's Executive Committee, 1986-2000. Service to Georgetown Alumni Association as member of Board of Directors, 1977-80; alumni Senator since 1980. Chair, Georgetown Alumni Admissions Interviewing Program (Western/Central Washington), 1975-2000; member, AAP Board of Advisors, 1997-present.

Service to St. Thomas More Society of Seattle, 1992-present; President, 1993-95.

Active in S.Y.S.A./Emerald City F.C. Premier League select youth soccer programs (1987-1999). Traveled to Kobe and Tokyo, Japan with Boys U-13 team (Emerald City Wings, Asst Mgr) for "International Soccer Tournament for Boys" (August 1989), 8-nation tournament (5th place); traveled to St-Egreve (Grenoble), France with Boys U-15 team (AFC Seattle, Mgr) for 7th "Tournei St-Egreve" (May 1993), 6-nation tournament (1st place).

PERSONAL

Midwest (Chicago area) native. Resident of Capitol Hill, Seattle (since 1973).

Married (1970) to Barbara Phippen (Librarian, St. Joseph School, Seattle, 1999-present).

Three sons: David University of Notre Dame (BA Architecture, 1999), Harvard University (MA Urban Design, 2004); architect with GGLO Architects, Seattle WA; Nat Claremont-McKenna College (BS Economics, 2000); owner, The Monk's Kettle, San Francisco CA; Andrew Allegheny College (BS Physics, 2003); research scientist, Midé Technology Corp., Medford MA (2003-present).

Enjoy swimming; reading; contemporary theater; gourmet cooking, oenology and brewing; furniture-making and woodworking.

Member, College Club (1999-present), Rainier Club (1990-2007), Washington Athletic Club (1974-present).

Super Lawyers
Seriously Outstanding
only 5% selected each year

REVISED 01/06/09

 

Article by Phil Cutler: "Practice Pointers for Counsel in Mediations"
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