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<b>Practice Notes: </b>Supreme Court Justices Ask Tough Qs In 'Judge Alex' Case

By Tony Mauro
January 28, 2008
Seven may be Eric Brunstad Jr.'s unlucky number. Brunstad, who works out of Bingham McCutchen's Hartford, CT office, has been building an impressive U.S. Supreme Court practice in recent years by taking on out-of-the-way bankruptcy and estate law cases ' one of which, Marshall v. Marshall, 547 U.S. 293 (S.Ct. 2006) ' turned into a very high-profile case because he was representing J. Howard Marshall, the late Anna Nicole Smith's ex-husband, who lost. The 2006 case probably brought the High Court more publicity than any case since Bush v. Gore in 2000.

Jan. 14, 2008 marked Brunstad's seventh oral argument before the Supreme Court and it was a doozy, with justices hitting him harder than almost any lawyer in recent memory. The case was Preston v. Ferrer, 06-1463, an arbitration case that also has a modicum of celebrity appeal because of the identity of Brunstad's client. Brunstad was arguing on behalf of Alex Ferrer, a former Florida judge who stars in the syndicated 'Judge Alex' TV show in which, ironically enough, he arbitrates disputes between ordinary folks over issues like falling trees and damaged furniture.

The dispute that attracted the Supreme Court's attention was between Ferrer and his former California agent, Arnold Preston, over their management agreement, which contains an arbitration clause. The issue was whether the dispute should be handled under the Federal Arbitration Act or under the special California law that governs talent agents' contracts.

Justices were unusually friendly toward Preston's Beverly Hills, CA, lawyer, Joseph Schleimer of the firm Schleimer & Freundlich, who argued that the federal law should preempt the state law. So by the time Brunstad rose to argue, he was already in a deep hole that was hard to climb out of. But you would not know it, given Brunstad's confident style, broad smile and booming voice. The justices hammered away hard at his position against preemption, however, arguing in essence that allowing state intervention would thwart the purpose of arbitration. Brunstad's smile vanished. Then it got ugly when Justices Anthony Kennedy and Ruth Bader Ginsburg started questioning the accuracy of statements he had made in his brief.

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