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Summary Judgment: A Tool in Franchise Arbitrations
Franchisors have come to rely on arbitration as an inexpensive and quick avenue to resolve disputes with franchisees. However, arbitrations have expanded in scope and complexity over the years such that many arbitrations now closely resemble a court or jury trial. In response, franchise counsel should incorporate language in the arbitration provision in the franchise agreement that gives the parties the express right to employ litigation tools typically used by plaintiffs and defendants to resolve issues before incurring the time and expense associated with full-blown trials. Those litigation tools include dispositive motions, such as a motion for summary judgment. Because very few franchise arbitration provisions deal with this subject, arbitrators today are often left to address this issue on their own, and some of them are unwilling to consider such dispositive motions, and instead require a full trial, including witness testimony, thereby imposing increased burdens and expenses on the parties.
As the record of arbitration decisions ' especially pre-hearing decisions on whether summary judgment motions should even be considered ' is extremely limited, it is difficult to accurately determine how many parties in an arbitration have been denied the opportunity to present a summary judgment motion. Most of the commercial arbitrations in the United States are governed by the Federal Arbitration Act (“FAA”). The FAA neither expressly permits nor expressly precludes the use of summary judgment or dispositive motions in the arbitration process ' it simply does not address this issue. Similarly, most arbitration associations do not specifically address in their rules the use of summary judgment motions in an arbitration. An argument certainly can be made that the language of the commercial rules for the American Arbitration Association (“AAA”) at least implies that the arbitrator has the flexibility or authority to hear and decide summary judgment motions in an arbitration. However, without express language permitting such motions, a party runs the risk of an arbitrator interpreting the rules differently.
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.