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Class Action Waivers in California: Discover Bank and Employment Arbitration
It is a matter of significant controversy and a subject of much litigation whether the U.S. Supreme Court's Federal Arbitration Act (FAA) jurisprudence enforcing pre-dispute arbitration agreements, regardless of whether the underlying dispute derives from contract, statute or public policy, extends to situations where individuals seek to bring class claims on behalf of large groups either in court or before the arbitral tribunal. Mostly, the decisions have supported this extension, provided the arbitration agreement authorizes the decision-maker to apply statutory as well as contract law and to award statutory remedies for proven violations. Because plaintiffs' lawyers have responded to these developments by bringing class claims in arbitration, despite silence in the underlying agreement whether the arbitrator possesses “class certification” authority, a number of companies have inserted express class action waivers in their arbitration programs. A recent decision of the California Supreme Court places in question the legal effectiveness of this response, at least in that state and for “consumer”-type claims.
Discover Bank v. Superior Court (Boehr), 36 Cal. 4th 148 (June 27, 2005) expands on earlier state unconscionability precedent to hold unenforceable arbitration agreements purporting to limit the ability of consumers to bring class action lawsuits. Discover Bank was a consumer credit case. While the decision raises issues for companies operating in other jurisdictions and for some non-consumer claims, the California high court's assumptions in that decision should not be imported into the employment arbitration context.
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.
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.
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.