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<i>Res Judicata</i> and Collateral Estoppel In Subsequent Arbitration Proceedings
The doctrines of res judicata (aka “claim preclusion”) and collateral estoppel (aka “issue preclusion”) are closely related: They both aim to foreclose a party from re-litigating a right, question or fact previously adjudicated by a court or tribunal of competent jurisdiction between the same or related parties. Because both doctrines have long been recognized as available in arbitration ( Commonwealth Ins. Co. v. Thomas A. Greene & Company, Inc., 709 F. Supp. 86, 88 (S.D.N.Y. 1989); Restatement (Second) Judgments ' 84(1)), it is not uncommon in the realm of reinsurance disputes ' where the reinsurance contracts at issue very often require an arbitral forum ' for a party that has been victorious on an issue or claim in an initial arbitration (or lawsuit) to attempt to preclude its opponent or a related party from re-adjudicating that same claim or issue in a subsequent arbitration.
The predominantly confidential nature of reinsurance arbitrations makes less clear how successful res judicata or collateral estoppel arguments before arbitrators are in ultimately barring the subsequent claims or issues. Indeed, as discussed further herein, the inherent attributes of the arbitration process, designed in part to bring greater efficiency and less formality to the dispute resolution process, may undermine the effectiveness of a preclusion argument.
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.