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Enforceable Browse Wrap Contracts
With the growth in its popularity, and the evolving sophistication of technology to offer and execute it, e-commerce is increasingly automated. In the past, Internet sites used terms of use agreements that include an Internet mechanism to affirm consent to be bound by the agreement (“click-wrap”).
But more often than ever, browse-wrap agreements are replacing click-wrap agreements. Enforceable browse-wrap agreements have two factors in common:
- They include sufficient notice of the terms; and
- The actions of the Internet user clearly manifest the user's acceptance of the terms.
Keep in mind that sufficient notice is not a bright-line test for browse-wrap agreement enforceability; rather, it has been used on a case-by-case basis. For instance, in Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002), the dispute was whether users of Netscape's software, who downloaded it from Netscape's Web site, were bound by an agreement to arbitrate disputes with Netscape in instances in which Netscape had posted the terms of its offer of the software (including the obligation to arbitrate disputes) on the Web site from which users downloaded the software.
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.
Second Circuit Reinforces Bankruptcy Code Settlement Payment Safe Harbor
The Second Circuit affirmed the lower courts' judgment that a "transfer made … in connection with a securities contract … by a qualifying financial institution" was entitled "to the protection of ... §546 (e)'s safe harbor ...."