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Arbitrate? Litigate? Avoid Both Through Mediation
In the September 2010 issue of FBLA, Rupert Barkoff wrote a thought-provoking article on the merits of arbitration versus litigation of franchise disputes. His article reminded me of what I tell all prospective franchisors who are trying to decide between arbitration and litigation: “I hate them both, but duels are unlawful.”
Unfortunately, our judicial system really does not provide any good alternative to either arbitration or litigation, both of which can be time consuming, costly, and uncertain. For that reason, a dozen years ago, we began recommending to our franchisor clients that they include a compulsory mediation provision in their franchise agreements. After more than 10 years of experience with these clauses, we find that while some people are disappointed by mediations that do not magically produce settlements, more often than not, they do produce resolutions that are preferable for both franchisee and franchisor (though maybe not for their lawyers) than results obtained in either litigation or arbitration.
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.