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All's Well That Ends Wellness:
For four years, there was no clarity, only questions. I am referring, of course, to those glaring questions left unanswered by the United States Supreme Court's decision in Stern v. Marshall, 564 U.S. 2, 131 S.Ct. 2594 (2011), which caused untold sleepless nights, ruined family vacations, and created marital strife. Questions such as, what if bankruptcy litigants consented to the bankruptcy court's adjudication of Stern claims? Would that cure the Article III violation? And, if litigants could consent, would the consent need to be express, or would implied consent be sufficient? And what about the question of whether bankruptcy judges would ever again be allowed to enter a final judgment in any avoidance action?
Four long years and then all was well, or Wellness, to be precise. In May 2015, the Supreme Court once again weighed in on the issue of bankruptcy court adjudication of Stern claims and provided us with a measure of clarity in its recent opinion, Wellness International Network, Ltd., et al. v. Sharif, 135 S. Ct. 1932 (2015). This article explores the background leading up to the Wellness decision, the facts and the holding of the Supreme Court's decision, and the aftermath of the decision.
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.
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.