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For Defendants: Developing the Sophisticated User/Intermediary Defense
In defending silicosis claim lawsuits, defendants must try to demonstrate the knowledge and sophistication of the plaintiff. This can be challenging, however, when the plaintiff disclaims knowledge or claims reliance on specific information from his or her employer or suppliers. The “sophisticated user” defense generally focuses on the knowledge and sophistication of the employer as a corporate entity regarding the industry as a whole and the product or product's inherent hazards specifically.
There are good reasons to focus on several levels within the company. Co-workers of the plaintiff are likely to be less knowledgeable and sophisticated than people higher in the corporation, but securing admissions that people similarly situated to the plaintiff were aware of hazards will help undermine the credibility of a plaintiff who is feigning ignorance. Developing the knowledge and sophistication of the corporate employer, however, usually requires deposing people in management.
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.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.