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Class Action Waivers in Employment-Related Arbitration Agreements
In April 2011, the U.S. Supreme Court issued a landmark opinion addressing whether arbitration agreements drafted to prohibit class relief are enforceable. AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) reiterated the Court's strong and consistent message that arbitration agreements must be enforced according to their terms. It emphasized in its holding that the parties' expectations must be honored even if those terms include class or collective action waivers, because “arbitration is a matter of contract.” In fact, the Concepcion Court went further and noted the incompatibility between arbitration's demonstrated efficiencies in resolving individual disputes compared with the statistical inefficiency of class relief. It concluded that class relief is inappropriate in arbitration unless the parties' agreement specifically authorizes it.
Although Concepcion arose in the consumer finance context, its analysis is not limited to any particular industry or contractual relationship. For franchisors and franchisees, the case is obviously critical to the franchise agreement itself, which often contains an arbitration agreement and may limit class relief. Whether it is a good thing that Concepcion guarantees parties the right to limit class relief in the franchise agreement likely depends on perspective. But both franchisors and franchisees are employers, and employment standards and procedures are often important terms in the franchise agreement. Employment relationships created in these agreements typically result in many employees in multiple locations. The opportunities Concepcion presents for franchisors and franchisees as employers to limit class relief in employee lawsuits cannot be ignored. As implications from the opinion continue to evolve, an employer's decision whether and how to craft enforceable arbitration agreements with employees has become more important than ever.
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.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.