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A Word to the Wise
A party moves to compel arbitration. The court grants the motion. Should the court dismiss the action or stay the proceeding? If the court dismisses the action, should the dismissal be with or without prejudice? I was always under the impression that it did not much matter, as a party seeking to affirm or challenge the subsequent arbitration award could always re-file the action after the arbitration. Whether this judge or another heard the subsequent proceeding seemed of little consequence. It turns out that whether a court dismisses the action or merely stays the court proceeding after compelling arbitration does in fact matter, but for quite different reasons, as highlighted by the Second Circuit's recent decision in Cap Gemini v. Nackel, 346 F.3d 360 (2d Cir. 10/14/03) (Meskill, Miner, and Straub, Cir. Judges)
In Cap Gemini, the employer moved in the Southern District to compel arbitration and to stay a California court action brought by a former employee, Nackel. The district court granted the employer's motion to compel, and stayed the California court action. The district court also stayed the action pending before it, placing it on the court's suspense calendar. The district court explained in a later order that it chose to stay rather than dismiss the case “to allow the parties the opportunity to seek confirmation of any arbitral award without filing a second action in federal court.” The district court further explained that it was the court's intent that its order be final and dispositive of the entire case.
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.
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.
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.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.