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The Ninth Circuit Strikes Again: Unconscionability and Arbitration Agreements on the West Coast
In a recent decision, the Ninth Circuit revisited the thorny issues involving the doctrine of unconscionability and its application to arbitration agreements. In Davis v. O'Melveny & Myers, 485 F.3d 1066 (9th. Cir. 2007), the court relied on a number of relatively recent, and by now well-known, cases in finding that a mandatory arbitration provision in O'Melveny's employee dispute resolution materials was unconscionable and, therefore, unenforceable.
The dispute resolution materials were distributed by O'Melveny to its employees by interoffice mail and posted on the office intranet site, and by their terms became effective three months later. In considering whether the agreement was unconscionable, the court focused on the various exceptions ('carve-outs') to the arbitration requirement, as well as the provision requiring notice and a demand for mediation within one year from when the basis of the claim was known, and a confidentiality clause.
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.