Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Attorneys' Fees Awards: No License to Pickpocket
It is generally thought that a contract provision awarding attorneys' fees to a prevailing party will be enforced. The most recent saga in the Domino's system's equipment dispute confirms this principle, but, at the same time, suggests that courts will, when appropriate, restrict the amount of the award. (Background: In Bores v. Domino's Pizza LLC, 489 F. Supp. 2d 940 (D. Minn. 2007), the trial court ruled in favor of the franchisee-plaintiffs in a dispute about whether the franchisor could impose certain purchasing restrictions on its franchisees. The decision was reversed by the Eight Circuit, which remanded with direction for the trial court to enter judgment in favor of franchisor Domino's. Bores v. Domino's Pizza LLC, 530 F.3d 671 (8th Cir. 2008).) From a counseling standpoint, there are several lessons to be learned from the trial court's ruling, the main lesson being: Don't spend an attorneys' award until the money is in the bank.
If the true objective for awarding attorneys' fees is to reduce the cost of litigation if successful, the first issue for consideration is whether the other party will be able to pay. Usually, this is a problem for the franchisor, and not for the franchisee that prevails, although recent economic downturns might alter the presumption here. In a large percentage of the cases, the franchisee is gasping for air when proceedings have been commenced. Too many franchisees fail or have issues because they are undercapitalized. Where this is the case, the franchisor, if it prevails, may have problems collecting any judgment granted in its favor. Collecting attorneys' fees will only compound a collectability problem that may already exist.
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.
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.
CLE Shouldn't Be the Only Mandatory Training for Attorneys
Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.
Discovery of Claim Construction and Infringement Analysis May be Compelled Prior to a Markman Hearing
A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.