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Contracting for Consumer Trade Compliance
No full textExport compliance is becoming increasingly important for parties required to abide by U.S. law, including many online sellers of consumer products. These retailers’ contractual terms with their customers set forth a number of provisions governing the relationship between them, including those which deal with arbitration, indemnification, disclaimer of warranties, and other issues. Many such agreements also purport to create obligations on the part of the consumer as to export control and sanctions compliance relative to the products they purchase. These contract provisions attempt to do so, however, in often markedly different ways, and with language that may leave notable gaps in the breadth of restrictions purportedly created. For example, some such provisions focus primarily on the export of software, even in the case of retailers of physical goods. Some provisions only contain prohibitions against unauthorized exports and leave unaddressed the issue of sanctions compliance. Other versions are far more detailed and specifically prohibit unauthorized transshipments and re-exports, along with other types of prohibited exports. This Article analyzes the extent to which agreements between online retailers and consumers actually achieve reduced regulatory risk for the companies who use them. First, it compares how these provisions differ among a sample of retailers’ terms of use, and the effect these different provisions have on retailers’ contractual relationships with their customers. The Article also examines the intersection between the private law contractual relationship between retailers and consumers and the public law export controls and sanctions measures to which retailers are subject. Retailers may use these contractual terms to attempt to shield themselves from compliance risk, but the terms at issue are often incomplete and in any case are unlikely to be actually read or understood by consumers. In some cases, they may not even become part of a binding contract between the consumer and the company. This Article suggests more effective ways of drafting these contractual terms, but ultimately concludes that other compliance measures such as IP address monitoring are far more likely to provide a meaningful reduction in compliance risk for retailers
Diocese of Rockville Centre Pioneers a Global Resolution for Itself, Its 136 Parishes, and its Settling Insurers Post-\u3ci\u3ePurdue\u3c/i\u3e
No full textIn order to resolve hundreds of Child Victims Act lawsuits alleging sexual abuse, the Diocese of Rockville Centre commenced chapter 11 to seek protection for itself, its parishes, and schools, as well as providing equitable compensation for the hundreds of claimants, while maximizing their substantial insurance assets. In 2024, the Supreme Court decisions in Purdue and Truck materially complicated such resolutions, presenting substantial hurdles to the dual objectives of getting parishes releases and maximizing insurance assets.
The Diocese, through innovation, met both challenges: It protected itself, its parishes, schools, and ministry and delivered total peace to their shared insurers for a cash settlement premised upon the surrender and release of their insurance protection. The key features were: (i) relying on a hybrid bankruptcy process that combined a traditional chapter 11 bankruptcy for the Diocese with rapid prepackaged bankruptcies for its parishes, thereby obtaining for all the protection of a discharge in bankruptcy and comfort sufficient to surrender their insurance protection; (ii) gaining for its settling insurers the protection of a channeling injunction against all derivative claims and a mechanic for obtaining consensual releases of direct claims from all affected abuse claimants; and (iii) relying upon a thorough understanding of derivative claims to protect its schools and others.
Through the hybrid process, the Diocese alone sustained the burdens of chapter 11 bankruptcy, including negotiating with claimants and insurers and creating a joint disclosure statement and plan, which anticipated parishes commencing chapter 11 cases only if there was overwhelming support for the joint plan. Once the Diocese obtained a clear mandate favoring the joint plan, all parishes filed rapid prepackaged bankruptcies, became co-proponents of the joint plan and exited bankruptcy within 36 hours of filing their cases with the protection of a discharge in bankruptcy against all historical abuse claims, whenever asserted
Arbitration in Higher Education Faculty Employment Contracts: A Tool for Protecting Academic Freedom
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