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D&O Liability
Delaware courts have recently issued decisions that may impact the number and types of claims brought by shareholders of Delaware companies seeking to hold directors and officers personally liable under various claims, in particular in connection with the current economic crisis. Plaintiffs in these cases have invoked novel theories in an attempt to extend the boundaries of an existing corporate law doctrine, the fiduciary duty of corporate oversight. Plaintiffs have also attempted to energize another doctrine that has had limited, if any, viability until recently, namely the doctrine of corporate waste. Under both approaches, plaintiffs have achieved some success. In addition, plaintiffs have succeeded in obtaining a clear declaration from Delaware courts that officers do, in fact, have the same fiduciary duties as directors, which is likely to open new avenues for potential claims by shareholders.
Fiduciary Duties
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.