Business Without Borders – International Business and Tax Planning Blog

Posts Tagged ‘United States’

The United States Supreme Court heard oral arguments today in a case that could have an enormous impact on business in the United States.  In Wal-mart Stores, Inc. v. Dukes, Betty, et al., 10-277, plaintiffs seek to affirm certification of a “nationwide class action consisting of all current and former female employees of Wal-Mart Stores, Inc., estimated at the time to comprise at least 1.5 million women.”  Petition for a Writ of Certiorari, 2010 WL 3355820, *1 (U.S. 2010). “The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.” Id. at 3355820.  The lower courts certified and affirmed the enormous class.  Id.at *1.

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“Together with the District of Columbia, every state now has codified some form of consumer protection.”¹ New Jersey and California have some of the toughest consumer protection laws. As an example, we will focus on the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (the “CFA”).

The CFA is a powerful tool that consumers can use against sellers of consumer products. Consumers can recover for reasonably ascertainable economic losses that result from 1) a seller’s misrepresentations in an affirmative statement, 2) a seller’s intentional omissions of material fact, or 3) a seller’s violation of applicable regulations. In addition to the broad powers that the CFA gives to the Attorney General to penalize such conduct, consumers can recover treble damages and attorney’s fees in a direct civil lawsuit. These heavy damages and the way in which some New Jersey trial courts apply the CFA, combine to make treading in New Jersey somewhat tricky.

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The current economic problems have created a great deal of activity in the business crimes area. When economies have problems, there are always two phenomena that occur. First, there is more regulation and legislation to prevent future business defalcations and there are more indictments of business persons for white collar crimes. This economic downturn is no exception.

The United Kingdom has passed legislation similar to the U.S. Foreign Corrupt Practices Act (“FCPA”). In fact, the U.K. legislation may be broader in scope than the FCPA. The Bribery Act of 2010, according to the Ministry of Justice, “….provide[s] a new, modern and comprehensive scheme of bribery offenses and enable[s] the courts and prosecutors to respond more effectively to bribery at home and abroad.”

The European Court of Justice recently confirmed prior case law that an in-house corporate lawyer receiving communications from other corporate employees, officers or directors or third persons does not create an attorney-client privilege. This means that communications with in-house counsel will not be protected from discovery.

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