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Appellate Court Says Waiver Enforceable, Notwithstanding Statute
Many state franchise or distributor statutes contain provisions that purport to limit the enforceability of waivers or releases signed by dealers or franchisees. The restrictions on waivers ' even to settle existing disputes (as opposed to prospective waivers or releases when there is no current dispute) ' are often justified on claimed “inequality of power” between the manufacturer or distributor and franchisee. One court recently struck a blow in favor of manufacturers and distributors in upholding a waiver even though part of the statute expressly referenced restrictions on certain waivers.
In Edwards v. Kia Motors of America, Edwards and his company, Huntsville Kia, sued Kia Motors of America in federal court, claiming that Kia violated a state dealer statute providing that any person who was injured by a violation of the statute could bring a claim “[n]otwithstanding the terms, provisions, or conditions of any dealer agreement or franchise or the terms or provisions of any waiver,” among other things. So. 2d, 2008 WL 2068088 (Ala. May 16, 2008). Edwards claimed that he purchased the Kia dealership with an understanding that he would later receive another dealership in a different town and that he would be able to sell the first dealership to a buyer that Kia would find. After the first dealership continued to lose money, Edwards eventually found a potential buyer and submitted a proposal for the buy/sell to Kia. In connection with the request for approval of the sale, Edwards signed a broad release; he later claimed that he was afraid Kia would not approve the sale if he refused to sign the release and that he was faced with a deadline for closing the sale with the buyer.
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.