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'Hell or High Water' Clause
Little embellishment is needed to describe the devastation wrought by Superstorm Sandy upon the East Coast, particularly the New York/New Jersey area. Alas, too many residents and businesses alike are still painfully inching toward recovery from this unprecedented natural disaster. And now, as if Sandy did not cause enough damage, it has the temerity to become the basis for a new legal precedent.
The case in question is grounded upon two very fundamental precepts of contract law. The first is that performance under a contract is excused when such performance is rendered impossible. To be sure, courts have consistently set the bar rather high for claiming that defense, by distinguishing impracticality or mere inconvenience, which is not an excuse, from true impossibility, which is more forgiving of a failure to perform.
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.
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.
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.