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The Brief Case for Insurer Standing in Asbestos Bankruptcies
Debtors facing mass-tort asbestos liability frequently challenge their insurers' standing to appear in the debtors' bankruptcy cases. They typically argue that their insurers have no standing because the proposed bankruptcy plan is “insurance neutral.” Debtors contend alternatively that the insurers' standing is limited to specific issues directly affecting the insurance contract, such as whether the debtor may assign policy proceeds notwithstanding anti-assignment provisions contained in the policy. Despite insurers' strong incentives to participate in mass-tort bankruptcies, bankruptcy courts have frequently been willing to suppress insurer objections that the debtor finds inconvenient.
Following the Third Circuit's 2004 decision in Combustion Engineering, it is increasingly clear that insurers have standing at least to ensure that the proposed plan does not directly alter the insurers' contractual rights. Stated differently, insurers can make certain that a proposed plan truly is “insurance neutral.” There is, however, no definition for “insurance neutral” in the Bankruptcy Code. Nor is there any consensus on what it should mean. Faced with uncertainty concerning the scope of insurers' right to participate, debtors and insurers in several recent cases have negotiated “insurance neutrality” stipulations and specifically bargained over the issues as to which the insurers will be heard. See e.g., In re Kaiser Aluminum Corp., Case No. 02-10429 (Bankr. D. Del. Nov. 2005); In re Federal Mogul, Case No. 01-10578 (Bankr. D. Del. 2005). Even in those cases, the debtors have argued that the insurers lack standing to raise arguments specifically preserved in the stipulations. See e.g., Transcript of Jan. 9, 2005 Hearing, In re Kaiser Aluminum, No. 02-10429 (Bankr. D. Del.), at 123:19-24. Nevertheless, putting aside those cases and the inherent compromises they embody, insurers continue to assert standing in their insureds' mass-tort driven bankruptcies.
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.