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Choice of Law: CA Court Strikes Down Florida Clause
Burgo v. Lady of America Franchise Corp., CCH Bus. Franchise Guide '13,367 (C.D. Cal. May 4, 2006) addresses choice of law clauses that often come into effect in franchisor-franchisee disputes. Twenty-two franchises of this women's fitness franchise filed suit in a California federal court against the Florida-based franchisor ('LOA') and its Florida-based president ('Wittenberns') for violations of the California Franchise Investment Law ('CFIL') and the California Unfair Trade Practices Act, common law fraud, and violations of the Florida Deceptive and Unfair Practices Act, and the Florida Franchise Misrep-resentation Act ('FFMA'). The franchise agreement contained a choice of law clause, which provided that the agreement and 'the relationship created thereby' would be 'construed and governed solely by internal Florida Law, without regard to any conflict of laws rules.' LOA moved to dismiss the complaint for failure to state a claim, and Wittenberns moved to dismiss for lack of in personam jurisdiction.
The plaintiffs argued that the court had in personam jurisdiction over Wittenberns by virtue of the provisions in the CFIL ('31302, Cal. Corp. Code) that impose liability on corporate officers who are controlling persons. The court held that it was not enough to rely on the liability provisions of the CFIL, since they were premised on the existence of in personam jurisdiction, citing Thomson v. Anderson, 113 Cal. App. 4th 258, 267-70 (2003), and did not create it. Since Wittenberns had insufficient minimum contacts with California, he was dismissed for lack of jurisdiction.
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.