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Maximizing Arbitration Provisions Post-Concepcion v. AT&T
On April 27, 2011, the United States Supreme Court issued a decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), which will have significant impacts on the prevalence of class-based claims arising out of contracts with consumers. In Concepcion, the plaintiffs brought a putative class action against AT&T, asserting claims for false advertising and fraud in connection with a cellular telephone agreement. The telephone services contract between the parties provided that all disputes arising out of the contract be brought by individual arbitration and explicitly banned class actions. The plaintiffs argued that the arbitration provision's ban on class-wide proceedings was unconscionable and, thus, unenforceable under California law. The Supreme Court disagreed and, in a 5-4 decision, held that the Federal Arbitration Act (FAA) preempts state laws that void class-action waivers for reasons of state public policy concerns, including unconscionability.
In the months since Concepcion, the majority of courts that have confronted arbitration provisions in consumer contracts that prohibit class actions have upheld them. However, a few decisions distinguished Concepcion and placed restrictions on its application. We examine the post-Concepcion landscape and offer guidance on how best to take advantage of the protections afforded by the Supreme Court's ruling.
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.