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Does It Really Matter Who Pays?
After a liability insurance company denies coverage for a lawsuit filed against its policyholder, the policyholder is left to manage the defense and settlement of the lawsuit. Sometimes, the policyholder is forced to, or elects to, have another person or entity pay for the defense fees, settlement, or judgment. This leads to the inevitable question of whether the policyholder can recover from its liability insurer sums paid for defense fees, settlement, or judgment if, after the insurance company has wrongfully denied coverage, the policyholder's defense bills, settlement, or a judgment are paid for by a non-insured person or entity. While it should not matter who pays once a liability insurer has breached its contract, some courts have denied policyholders recoveries when a non-insured third-party steps in for the breaching liability insurer and pays the policyholder's defense fees, a settlement, or the judgment.
As the name suggests, liability insurance policies are designed to protect policyholders from liability. For example, many liability policies require the insurer to pay all sums that the policyholder is 'legally obligated to pay as damages.' Liability insurance policies also typically require insurers to defend actions potentially within the coverage of the policy. 'The major substantive distinction between a liability policy and an indemnity contract is that payment of a claim by the insured is a condition precedent to the insured's right to recover under the indemnity contract, but not under the liability contract.' Couch on Insurance 2d '103:3 at 103:14 (2005) (footnoted omitted).
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.