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Direct Evidence Not Needed in Mixed-Motive Cases
The Supreme Court ended its last term holding that direct evidence of discrimination is not necessary in a Title VII mixed-motive case. Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003) brings an end to an appellate court split regarding evidentiary burdens that began with the Court's plurality decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
In Price Waterhouse, the Court considered facts indicating that both legitimate and illegal reasons motivated an employment decision. When Ann Hopkins was passed over for partnership, she was told that she needed to “take a course at charm school” and to “dress more femininely.” But there was also evidence to suggest that the company had legitimate concerns about Hopkins' performance. The Court concluded that under Title VII, an employer may avoid liability “by proving that it would have made the same decision even if it had not allowed [protected status] to play such a role.”
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Second Circuit Reinforces Bankruptcy Code Settlement Payment Safe Harbor
The Second Circuit affirmed the lower courts' judgment that a "transfer made … in connection with a securities contract … by a qualifying financial institution" was entitled "to the protection of ... §546 (e)'s safe harbor ...."