Although Deferred Prosecution Agreements ("DPAs") and Non-Prosecution Agreements ("NPAs") were rarely used and hardly discussed a decade ago, in the last several years they have become a hot topic and common aspect of corporate prosecutions: Congress, legal academics, and practitioners—from prosecutors to defense counsel—have weighed in on the Department of Justice's ("DOJ's") use of the agreements. DPAs and NPAs are types of pre-trial agreements whereby the government agrees not to pursue charges against a corporation so long as the corporation abides by the terms of the agreement. Although often similar in content, the emerging difference between a DPA and an NPA is whether a criminal information is filed in a federal court. With
Client Alert | January 7, 2010
On December 21, 2009, President Obama signed the 2010 Defense Appropriations Act. Among other things, the Act extends the eligibility period for the COBRA premium subsidy from December 31, 2009 to February 28, 2010 and expands the maximum duration of the subsidy from 9 to 15 months. The longer subsidy period applies retroactively and will require plan administrators to provide a supplemental notice to affected individuals.BackgroundThe COBRA subsidy initially was included in The American Recovery and Reinvestment Act of 2009 (commonly known as the stimulus bill) and provided a temporary COBRA premium subsidy for employees who lost health plan coverage between September 1, 2008 and December 31, 2009 due to involuntary terminations of employment. Our February 24, 2009
Client Alert | December 22, 2009
Document preservation is one of the earliest and most important stages of document discovery. As federal courts continued to issue a steady flow of decisions in 2009 addressing the topic of document preservation and providing guidance to preserving parties, mastering the basic principles of document preservation is more important than ever.
Client Alert | December 22, 2009
New York associate Farrah Pepper is the author of "To Have and to Hold: A Romantic Guide to Document Preservation" [PDF] published online by ALM on December 16, 2009 at law.com.
Client Alert | December 16, 2009
Los Angeles partner Gareth Evans and New York associate Farrah Pepper are the authors of "Court Holds U.S. Discovery Rules Trump French Law and Hague Convention" [PDF] published in the December 1, 2009 issue of BNA's Digital Discovery and E-Evidence.
Article | December 1, 2009
Los Angeles partner Gareth Evans and New York associate Farrah Pepper are the authors of "Federal Rule of Evidence 502: Getting to Know an Important E-Discovery Tool" [PDF] published in the November 2009 issue of Orange County Lawyer.
Client Alert | November 2, 2009
New York partner Jennifer Rearden and associate Farrah Pepper are the authors of "If The Sedona Conference Builds It, Will They Cooperate? Year in Review" [PDF] published in the October 27, 2009 issue of the New York Law Journal.
Client Alert | October 27, 2009
In a detailed ruling with important implications for any company doing business abroad, Judge Paul C. Huck of the United States District Court in Miami this week denied enforcement of a $97 million judgment that a Nicaraguan court had rendered against Dole Food Company, Inc.
Client Alert | October 23, 2009
On 25 August 2009 (albeit the relevant decision has only recently been published), the Securities and Exchange Commission (the SEC) hit a stumbling block in its efforts to extend its jurisdiction to obtain documents and information from outside its territory, from the UK at least. Over recent years, international co-operation between regulators has increased, and has been reported to have increased, and a near assumption has arisen in the UK that, if the SEC asks for assistance from the UK's financial services regulator, the Financial Services Authority (the FSA), that assistance will be provided by the FSA and complied with by the relevant UK entity, irrespective of the time and cost involved in doing so.
Client Alert | October 19, 2009
On July 23, 2009, in an opinion authored by Chief Judge Anthony Scirica and joined by Judge Marjorie Rendell and Justice Sandra Day O'Connor (Ret.), the United States Court of Appeals for the Third Circuit issued a seminal decision regarding class certification pursuant to Rule 23(b)(2) and employment cases generally. Hohider v. United Parcel Service, Inc., No.
Client Alert | July 24, 2009
In a landmark decision which has already received wide press coverage, on June 30, 2009 the French Cour de Cassation, which is the highest court in the French judiciary, accepted Gibson Dunn’s arguments and reversed a longstanding case law regarding creditors' absence of standing in challenging the jurisdiction of French courts in the context of insolvency proceedings.
Client Alert | July 13, 2009
The frenetic pace of False Claims Act ("FCA") activity in 2008 has continued into the first half of 2009. In addition to record-breaking FCA settlements in several industries, we have witnessed substantial amendments to the federal statute itself.
Client Alert | July 13, 2009
On 6 July 2009, the UK's financial services regulator, the Financial Services Authority (FSA), continued its "credible deterrence philosophy" by issuing a consultation paper (CP09/19) outlining proposals to change its current policy on determining the level of civil financial penalties imposed for regulatory breaches. These new proposals are consistent with the FSA's other recent indications that it can no longer be seen as a light-touch enforcer (see our previous client update: "The UK Financial Services Authority Demonstrates "Credible Deterrence Philosophy" with Prosecutions").What is somewhat startling about the FSA's proposals is quite how harsh they could potentially be in practice, for both corporations and individuals, but particularly for indivi
Client Alert | July 10, 2009
DPAs and NPAs, Too Much of A Good Thing?Although virtually unheard of a decade ago, Deferred Prosecution Agreements ("DPAs") and Non-Prosecution Agreements ("NPAs") are a growing phenomenon in corporate prosecutions. Essentially, DPAs and NPAs are agreements whereby the government agrees not to prosecute a corporation so long as the corporation abides by the terms of the agreement. The key distinction between a DPA and an NPA is whether or not charges are filed against the corporation: with a DPA the government files criminal charges with the court, while with an NPA nothing is filed with the court so long as the corporation completes the terms of the agreement--the agreement is strictly between the government and the corporation.Following the collapse
Client Alert | July 8, 2009
Sanctions Cases Double Over 2008; Courts Continue to Press for Cooperation; E⁃discovery Trends in Criminal and Constitutional LawA comprehensive review of more than sixty federal and state court opinions addressing e-discovery issued during the first five months of 2009 reveals a dramatic increase in the frequency with which courts consider and apply sanctions. In part, the increase in sanctions reflects solidifying legal standards governing when a potential litigant must preserve electronic evidence. These opinions also reflect a continuing effort by the courts to urge litigants and their counsel to cooperate in e-discovery matters, and to sensibly and proportionately develop e-discovery protocols. Highlights of 2009 to date include: More than half of the e-disco
Client Alert | July 8, 2009
As the inauguration of Barack Obama in January 2009 ushered in a new U.S.
Client Alert | July 7, 2009
In previous client updates ("UK House of Lords confirms the limitations of the economic torts of intentionally causing economic loss" and "English Court of Appeal clarifies economic tort of conspiracy"), we discussed two landmark judgments concerning economic torts handed down in 2007 by, respectively, the UK Judicial Committee of the House of Lords and the English Court of Appeal. An "economic tort" or "intentional tort" can be perpetrated by a party (D) if D causes economic loss to another (P) in a situation where D is in neither a contractual nor other legal relationship with P.The first of those previous client updates considered, in particular, the economic torts of (i) procuring or inducing a breach of contract between P and a thi
Client Alert | July 6, 2009
Orange County partner Jeffrey T. Thomas and associate Joshua A. Jessen are the authors of "New Hurdle to Limiting Foreign Infringement" [PDF] published in the July 2009 issue of the Orange County Business Journal.
Client Alert | July 1, 2009
Alert: Potential Trap for the Unwary re Inaccessible InformationGovernor Schwarzenegger yesterday signed into law Assembly Bill 5, the "Electronic Discovery Act," enacting significant electronic discovery amendments to the California Code of Civil Procedure. Because the legislature deemed it "urgency" legislation, it is effective immediately. Although the legislation largely follows the 2006 electronic discovery amendments to the Federal Rules of Civil Procedure, it differs in its treatment of inaccessible information (such as backup tapes) and in its safe harbor for lost information. Of particular note, the Bill requires parties in their written responses to document requests to object to the production of inaccessible information to preserve th
Client Alert | June 30, 2009
In three opinions issued between May 18 and 29, 2009, the Delaware Chancery Court has provided guidance on several key electronic discovery issues--triggering of the duty to preserve electronically stored information (“ESI”) and the scope of that duty; spoliation of evidence and the factors used to determine sanctions; and cost-shifting in relation to inaccessible data.
Client Alert | June 19, 2009
On March 3, 2009, the California Court of Appeal for Sixth Appellate District issued a significant published opinion substantively analyzing the scope of the preemption clause (Civ.
Client Alert | June 3, 2009
On May 20, 2009, President Obama signed into law significant changes to the False Claims Act, 31 U.S.C. § 3729 et seq. ("FCA"). The amendments will increase the liability exposure of every company that does business with the federal government and of every company that supplies goods or services that are reimbursed by federal government dollars. This update provides an overview of the changes brought about by the new law, which (among other things), legislatively overturns the Supreme Court's 9-0 ruling last term in Allison Engine Co., Inc.
Client Alert | May 26, 2009
California's Unfair Competition Law (Cal. Bus. & Prof.
Client Alert | May 26, 2009
New York partner Jennifer Rearden and associate Farrah Pepper are the authors of "Judge Issues a "Wake-Up Call" to New York Lawyers: When it Comes to Search Terms, Play Nice and Plan Ahead" [PDF] published in the May 2009 issue of Bloomberg Law Reports.
Client Alert | May 5, 2009
Los Angeles partner Julian W. Poon is the authors of "Tenth Circuit Clarifies Loss Causation Burden" [PDF] published in the May/June 2009 issue of ABA's Business Law Today.
Client Alert | May 4, 2009
On April 20, 2009, the Supreme Court of California narrowed the scope of California's Consumers Legal Remedies Act ("CLRA") by holding in a unanimous opinion that life insurance is not a "good" or "service" subject to the CLRA. Fairbanks v. Superior Court (Farmers New World Life Ins.
Client Alert | April 27, 2009
Orange County partner Michele L. Maryott is the author of "The Trial on Paper: Key Considerations for Determining Whether to File a Summary Judgment Motion" [PDF] published in the Spring 2009 issue of ABA's Litigation.
Client Alert | April 27, 2009
As described in our February 24, 2009 client alert, the American Recovery and Reinvestment Act of 2009 (commonly knows as the stimulus bill) implemented a COBRA premium subsidy for employees who are involuntarily terminated between September 1, 2008 and December 31, 2009. The Labor Department and the Internal Revenue Service have issued important guidance to assist employers and plan administrators in satisfying their subsidy-related obligations.
Client Alert | April 3, 2009
Los Angeles partner Julian W. Poon and associates Blaine H. Evanson and William K. Pao are the authors of "Interlocutory Appellate Review of Class-Certification Rulings under Rule 23(f): Do Articulated Standards Matter?" [PDF] published in the Winter 2009 issue of DRI's Certworthy Newsletter.
Article | March 31, 2009
In January, we provided you with our 2008 Year-End False Claims Act Update in which we discussed, among other things, legislation proposed in Congress in 2007 that would significantly broaden the scope of the False claims Act (the "FCA"). As we predicted, Senator Grassley (R-IA) recently introduced legislation to amend the FCA that, given the current economic environment, Congress is likely to pass. Congress may feel more pressure to pass these bills this session to demonstrate a commitment to protect taxpayer's dollars from fraud, waste, and abuse. First, on February 5, 2009, Senator Grassley introduced the Fraud Enforcement and Recovery Act, S.
Client Alert | February 26, 2009
I. Introduction Today's headlines are riddled with allegations of fraud and fraudulent schemes--against investors, markets, homeowners, individuals, corporations, and the government.
Client Alert | January 8, 2009
2008 – A Dynamic Year in Corporate Deferred Prosecution AgreementsIn the post-Enron and WorldCom era, the U.S. Department of Justice ("DOJ") often uses corporate deferred prosecution agreements ("DPAs") to resolve federal criminal investigations.
Client Alert | January 6, 2009
By any measure, 2008 was a monster year in Foreign Corrupt Practices Act ("FCPA") enforcement. With thirty-three enforcement actions between the Department of Justice ("DOJ") and Securities and Exchange Commission ("SEC"), the statute's dual enforcers, 2008 was the second busiest numerical year on the books, trailing only 2007. But beyond the numbers (after all, with the massive Siemens resolution, 2008 dwarfs all other years combined in fines and disgorgement), 2008 saw the FCPA's enforcement regime mature like never before. There were no unimportant FCPA enforcement actions this year. Whether the trend was increasingly aggressive enforcement against individuals, ramped up international coordination, the joining of FCPA prosecutions wi
Client Alert | January 5, 2009
Washington, D.C. partner Mark A. Perry and of counsel Paul Blankenstein are the authors of "The Inapplicability of Rule 23(b)(1) to ERISA Class Actions" [PDF] published in the December 5, 2008 issue of BNA Inc.'s Workplace Law Report.
Client Alert | December 5, 2008
In the past few months, executive compensation practices have received unprecedented attention. In the recent "bailout" legislation for the financial services industry, for the first time Congress has imposed substantive limitations on executive compensation. In this case, the restrictions are imposed on executives of financial institutions that accept federal assistance under the Troubled Assets Relief Program ("TARP"). It is widely anticipated that Congress will expand some of the limitations under TARP to cover other publicly-traded companies. In addition, Congress may enact "say on pay" legislation in the next Congress. Even if it does not, it can be expected that compensation-related shareholder proposals, perhaps model
Client Alert | November 14, 2008
Many of our clients have been facing unprecedented new challenges as a result of the dramatic economic events that have occurred over the last month. The financial markets continue to evolve in Washington on a real-time basis and the daily volatile gyrations in the stock markets around the world have led to uncertainty, anxiety and issues of first impression for many of our clients. We believe that the events that occur in the coming months will shape not only the financial futures of many of our clients and their competitors, but also the world economy.
Client Alert | October 20, 2008
London partner Rachel Couter is the author of "Choice roles" [PDF] published in the October 20, 2008 issue of The Lawyer.
Client Alert | October 20, 2008
On July 7, 2008, the U.S. District Court for the Southern District of New York became one of the first courts to apply the United States Supreme Court's recent decision in Hall Street Associates, LLC v. Mattel, Inc., 128 S.
Client Alert | October 7, 2008
Los Angeles of counsel William E. Thomson and associate Kahn A. Scolnick are the authors of "The Supreme Court Sets New Punitive Damage Limits Under Federal Common Law" [PDF] published in the October 2008 issue of Class Action Watch.
Client Alert | October 1, 2008
Most jurisdictions have at least some requirement that parties to disputes must disclose relevant documents to their opposing parties. England is no exception. Disclosure is normally provided subject to obligations on the opposing party to (i) keep such documents confidential and (ii) not use such documents for any purpose other than the proceedings for which the documents are disclosed (non-use obligations). Non-use obligations, naturally, apply both to the parties to the dispute and to their legal advisers. Generally, they are well understood and cause no difficulties. However, questions can sometimes arise as to whether, like conflicts of interest, they can prevent a client from instructing its lawyer of choice.A common situation where such a
Client Alert | July 30, 2008
The frenetic pace of Foreign Corrupt Practices Act ("FCPA") enforcement set in 2007 has carried through the first half of 2008. Mid-year prosecutions are up – substantially so – from last year's record-setting totals. And corporate disclosures and media reports of ongoing investigations evidence that this trend of continually increasing enforcement is here to stay for the near future. This client update provides an overview of the FCPA and other foreign bribery enforcement activities during the first half of 2008, a discussion of the trends we see from that activity, and practical guidance to help companies avoid or limit liability under these laws. A collection of Gibson Dunn's publications on the FCPA, including prior enforcement updates and more in-
Client Alert | July 7, 2008
On June 25, 2008, the Supreme Court issued an important decision clarifying the standards for punitive damages review under federal common law. In an opinion authored by Justice Souter (in which Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined, and Justices Stevens, Ginsburg and Breyer joined in part), the Court vacated a $2.5 billion punitive damages award as excessive under federal maritime common law, and set an upper limit on such awards of a 1:1 punitive-to-compensatory damages ratio. In Exxon Shipping Co., et al.
Client Alert | June 26, 2008
Los Angeles Of Counsel William E. Thomson is the author of "Foreign Torts and the Commerce Clause: Territorial Limitations On State Power To Impose Punitive Damages" [PDF] which appeared in the Spring 2008 issue of the ABA Mass Torts newsletter. Reprinted with permission, © 2008, ABA Publications.
Client Alert | May 13, 2008
Partner Alexander H. Southwell is a co-author of "Data Breaches: Expect A Rise in Litigation" [PDF] published in the May 12, 2008 New York Law Journal special section on Investigations & Computer Forensics
Client Alert | May 12, 2008
Denver Of Counsel Gregory Whitehair is the author of "So You Want To Sue For Trade Secret" [PDF] published in the March 24, 2008 issue of Law Week Colorado.
Client Alert | March 24, 2008
Gibson Dunn partner Cy Benson is the author of author of "An InjunctIon too Far: C v D" [PDF] published in Vol 3, Issue 1, of the Global Arbitration Review, page 38, www.GlobalArbitrationReview.com.
Client Alert | March 7, 2008
On February 20, the Supreme Court of the United States issued an 8-1 decision in Preston v. Ferrer, which held that when parties agree to arbitrate all questions arising under a contract, the Federal Arbitration Act (FAA) supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative.
Client Alert | February 27, 2008
In a previous client update ("UK House of Lords confirms the limitations of the economic torts of intentionally causing economic loss"), we discussed the landmark judgment handed down on 2 May 2007 by the UK Judicial Committee of the House of Lords in three separate appeals involving claims for economic torts (OBG v Allan)1 "Economic torts" or "intentional torts" are perpetrated by a party (D) if D causes economic loss to another (P) in situations where D is in neither a contractual nor other legal relationship with P. In their May 2007 judgment, whilst their Lordships specifically considered, and clarified, the economic torts of (i) procuring or inducing a breach of contract between P and a third party (T); and (ii) unlawful interference with P's trade
Client Alert | February 19, 2008
On December 12, 2007, the French Supreme Court upheld the Paris Court of Appeals' ruling of March 28, 2007, which found a French lawyer criminally liable for violating the 1980 Blocking Statute that prohibits, inter alia, the gathering in France of business-related information to be used in foreign litigation (the "Decision"). Factual BackgroundThe Decision is one aspect of the lengthy Executive Life case.In 1998, the California Insurance Commissioner launched an investigation against a French consortium for an alleged fraudulent take-over of the U.S.
Client Alert | January 17, 2008
Dallas partner James Ho is the author of “Constitutional Law: Punitives And Process” [PDF] published in the December 24, 2007 issue of Texas Lawyer.
Client Alert | December 24, 2007