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Coverage for Unsolicited Faxes
Two recent decisions ' one by an Illinois state court and the other by the Fourth Circuit Court of Appeals ' reveal that courts remain divided as to whether general liability policies provide coverage for fax-advertising claims under the Telephone Consumer Protection Act (“TCPA”). Generally, the TCPA prohibits, among other things, the use of fax machines or other devices to send “an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. '227(b)(3). The TCPA provides a private right of action by the recipients of such faxes to sue the senders. Id. Notably, under the TCPA, the recipient does not have to demonstrate any injury to prevail on its claim; the receipt of an unsolicited fax is sufficient to trigger liability under the statute.
In Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631 (4th Cir. 2005) (Va. law), the Fourth Circuit held that an insurer did not have a duty to defend or indemnify an insured against alleged violations of the TCPA. In contrast, in Valley Forge Ins. Co. v. Swiderski Electronics, Inc., 834 N.E. 2d 562 (Ill. App. 2005), an appellate court in Illinois rejected the Resource Bankshares analysis and held that the insurer was obligated to provide a defense. The contrasting results in these two cases ' as well as in other cases ' stem solely from differing interpretations of the scope of the “personal and advertising injury” and “property damage” coverages under a general liability policy.
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.