Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Last Call for Non-Proportionate Bar Orders
The means by which courts implement bar orders in securities class actions continue to evolve. Currently, courts use three widely recognized methods to calculate the judgment reduction credit given to a non-settling defendant who is barred from pursuing contribution claims from a settling defendant. One method, pro rata, has already lost favor in the courts and in the near future, the second method, pro tanto, will most likely fall from grace as well. In contrast to the first two, the last method, proportionate fault, is rising in popularity due to its greater likelihood of leading to equitable results. It is, therefore, last call to those seeking to have their bar order filled by anything other than the proportionate fault method.
There can be various types of bar orders, both statutory and judicially crafted ones. Statutory bar orders under the Private Securities Litigation Reform Act (PSLRA) give non-settling defendants a mix of pro tanto and proportionate responsibility, where, regardless of what happens, they will receive a judgment reduction in an amount at least as great as the amount paid by the settling defendants and no more than required by their actual liability. A similar methodology was used in the Second Circuit's Gerber v. MTC Elec. Techs. Co., 329 F.3d 297 (2nd Cir. 2003). However, it appears likely that in the near future, the Second Circuit and others will adopt the proportionate method as a unified means to calculate judgment credit reductions. A brief overview of the three methods will be detailed below, followed by a description of the Gerber and Denney cases from the Second Circuit and an explanation of why the trend towards a single method of serving bar orders should be welcomed.
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.