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Are Lost Future Royalties Awardable Damages?
Over the last 16 years, there may have been no more-litigated franchise issue than the recovery of lost future royalties. Specifically, should the termination of, or by, a franchisee entitle the franchisor to recover lost future royalties from the former franchisee?
The trend toward unpredictability of how courts would address this issue began with the landmark case of Postal Instant Press, Inc. v. Sealy, 51 Cal. Rptr. 2d 365 (Ct. App. 1996). In Sealy, the California Court of Appeals held that the franchisor who terminated its franchisee because of the franchisee's failure to pay past due royalties was not entitled to recover lost future royalties for two reasons. First, contract law requires that in order for the franchisor to recover damages, the franchisee's breach must be the proximate cause of the damages. The Sealy court concluded that it was the franchisor's decision to terminate (as distinguished from its remedy of suing for damages as they accrued in the future) that caused the damages. Second, the court concluded that recovery of lost future royalties would be unconscionable. With respect to the first justification for its decision, the court noted that its holding might have been different if the franchisee, rather than the franchisor, had terminated the agreement.
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.
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.
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.