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Drafting a Better and More Effective Right of First Refusal
Land transfers date back to biblical times and have been the subject of an inordinate amount of litigation. Of course, the importance and value of land and the necessity for shelter might help to explain many of the disputes. Some, however, are due to human error, especially those involving the right to purchase property.
A national analysis and survey of right of first refusal litigation over the past 11 years provides a detailed explanation for these disputes. Litigation has ensued mainly as a result of faulty draftsmanship and disagreement over the meaning of the clause in particular contracts. A survey of all 50 states and the District of Columbia revealed only nine states without published decisions stemming from litigation over a right of first refusal ('ROFR') (Idaho, Kentucky, Maine, Nevada, New Jersey, North Carolina, Oklahoma, South Dakota, and Vermont). Other states, including Connecticut, Missouri, Montana, and Ohio recorded at least five decisions involving the ROFR, according to a Lexis/Nexis search. Texas and Virginia produced six decisions, and Florida reported eight decisions of record during the past 11 years. Michigan, Tennessee, and Wisconsin reported at least nine decisions, while Minnesota had 11; Georgia had 17, and Massachusetts published 18 decisions involving the ROFR. New York, by far, has the most published decisions involving the ROFR. Since 2001 alone, 31 New York judicial decisions have been published involving a right of first refusal; twenty-five of them arose from the inability of the parties to agree on the implementation of the provision and/or the failure of the provision to provide adequate guidance. This includes 24 cases decided on appeal.
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.
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.
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.