Litigation

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• 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.

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• 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.

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• 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.

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• Supreme Court Asked to Assess Per Se Rule Tension in Criminal Antitrust

  In recent years, practitioners have observed a tension between criminal enforcement of the broadly written terms of the Sherman Antitrust Act of 1890 and the modern Supreme Court's notions of statutory interpretation and due process in the criminal law context. A certiorari petition filed in late August in Sanchez et al. v. United States, asks the Supreme Court to address this tension, as embodied in the judge-made per se rule.

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• Restrictive Covenants Meet the Telecommunications Act of 1996

  Congress enacted the Telecommunications Act of 1996 to encourage development of telecommunications technologies, and in particular, to facilitate growth of the wireless telephone industry. The statute's provisions on pre-emption of state and local regulation have been frequently litigated. Last month, however, the Court of Appeals, in <i>Chambers v. Old Stone Hill Road Associates (see infra<i>, p. 7) faced an issue of first impression: Can neighboring landowners invoke private restrictive covenants to prevent construction of a cellular telephone tower? The court upheld the restrictive covenants, recognizing that the federal statute was designed to reduce state and local regulation of cell phone facilities, not to alter rights created by private agreement.

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