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How California Courts Should Handle Implied Good-Faith Obligation
[Editor's Note: This summer, the New York Supreme Court issued a ruling explaining why it refused to sanction film producer Crusader Entertainment for seeking to serve restraining orders ' on book author Clive Cussler's New York publisher and agent ' over an increased judgment the Los Angeles Superior Court had awarded Crusader in litigation with Cussler over the motion picture Sahara. Crusader Entertainment LLC v, Cussler, 107376/08 (N.Y. Sup. Ct., N.Y. County). The California jury had found that Cussler breached an implied covenant of good faith and fair dealing when he rejected a series of screenplays developed for the movie, based on his novel Sahara. The California Court of Appeal later rejected the jury's verdict on the implied covenant issue. In the article that follows, contract-drafting expert Kenneth A. Adams offers recommendations for California courts to consider on what he believes is a faulty court of appeal decision on a still cloudy, implied covenant issue in the state's jurisprudence.]
In Cussler v. Crusader Entertainment LLC, B208738 (Cal. Ct. App. 2010), the California Court of Appeal, Second District, rejected Crusader's argument that when author Clive Cussler refused to approve Crusader's many proposed screenplays for the film Sahara, Cussler breached the implied duty of good faith that is read under California law into every contract. The California Supreme Court subsequently denied petitions for review filed by Cussler and Crusader. (This author filed an amicus curiae letter in support of Crusader's petition for review.)
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 ...."