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Crafting Arbitration Clauses
In the recent decision of AT&T Mobility LLC v. Vincent Concepcion, 563 U.S. __ (April 27, 2011), the U.S. Supreme Court reaffirmed its long-standing support for arbitration, even in the face of efforts to limit it, holding that a California Supreme Court decision limiting class action arbitrations was pre-empted by the Federal Arbitration Act (“FAA”). The Court relied on prior decisions that, “place it beyond dispute that the FAA was designed to promote arbitration,” and describing the FAA “as 'embod[ying] [a] national policy favoring arbitration.' Buckeye Check Cashing, 546 U.S., at 443, and 'a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.' Moses H. Cone, 460 U.S., at 24 ' ” Id.
Despite the Court's endorsement of arbitration, the process has, by some accounts, become a victim of its own success. Parties increasingly complain that the purported benefits of arbitration ' time and cost savings, efficiency, finality of the result ' are being lost as counsel more often employ traditional litigation techniques that bog down the process.
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.