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ERISA Class Certification in The Wake of Dukes And Amara
The U.S. Supreme Court issued two starkly different decisions in 2011 that together will shape (and, indeed, have already shaped) the analysis that courts must employ in determining whether to certify ERISA class actions: Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). Dukes has, of course, clarified the standard for determining commonality in class actions and narrowed the circumstances in which plaintiffs may certify Federal Rule of Civil Procedure 23(b)(2) class actions. Amara ruled that a plaintiff must establish “actual harm” from alleged misrepresentations made about upcoming changes to pension plan benefits in order to obtain “appropriate equitable relief” under section 502(a)(3) of ERISA. Taken together, Dukes and Amara make class certification exceedingly difficult (though not impossible) in the ERISA context.
Background
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.