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Documentation Requirements: No Right for Excess Carriers to Second-Guess Primary Carriers' Settlement Payments
Since 2001, numerous insurance companies have sought to impose on asbestos liability claims so-called “Documentation Requirements” (“DRs”), seeking to limit coverage provided by its policies to those claims that meet certain criteria. Those insurance companies assert that the DRs are necessary to counter the growing number of unsubstantiated asbestos-related bodily injury claims brought against policyholders. Generally, the DRs require a policyholder to provide medical documentation and data to show each asbestos injury for each claimant, as well as provide product identification and exposure history. See Scott Moser, Mealey's Seminar, 16 Mealey's Litig. Rep. 12 (Dec. 11, 2001) (an attorney for Equitas speaking about the documentation requirements). The policyholders, on the other hand, see the DRs as unreasonable conditions to coverage that are not found anywhere in the policy language. They argue that in many cases it may be reasonable for them or for their primary carriers to settle or to have settled claims for which there is not yet fully developed information, to avoid, inter alia, increased defense costs and the possibility of a much higher judgment if the information developed is unfavorable.
Application of the DRs to claims that fall within the layer of the insurance company that is putting them forth is questionable, particularly where the insurance company is denying coverage on other grounds. Numerous courts have held that a policyholder in such a situation who settles in the face of a reasonable anticipation that the underlying claimant may be successful is not required to prove the underlying liability case against itself in order to receive coverage. See e.g., Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368, 1378-79 (E.D.N.Y. 1988); U.S. Gypsum Co. v. Admiral Ins. Co., 643 N.E.2d 1226, 1244 (Ill. App. 1995); Luria Bros. v. Alliance Assurance Co., 780 F.2d 1082, 1091 (2d Cir. 1986).
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.
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.
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.
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.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.