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Litigation Conduct: Removing the 'Bad Faith' Trap
Pure self-interest seemingly motivates parties in the adversarial system; but insurance presents a twist on that common understanding when it comes to litigation over coverage. That is because courts have held that a coverage action does not terminate certain obligations existing between an insured and its insurer ' even with respect to the particular claim at issue in the coverage dispute. With increasing frequency, aggressive attorneys representing policyholders argue that, despite traditional common law or statutory litigation and settlement privileges and protections, an insurer's conduct during a coverage lawsuit should be scrutinized with the aim of identifying evidence of 'bad faith' that can be used against the insurer.
The law in this area is still developing, but a body of case law is being generated that presents a principled, 'bright-line' rule that distinguishes between an insurer's conduct as a litigant seeking a judicial declaration on coverage and the insurer's conduct purely as an insurer making a coverage decision. These cases recognize that a coverage dispute that is in litigation should not provide a springboard for policyholders to generate 'bad faith' allegations as a litigation strategy. These courts reason that when coverage is in dispute, an insurer has a right to bring or defend against a coverage action. They view evidence of post-litigation conduct as irrelevant or, if not, of limited probative value at best. These courts also recognize that procedural and ethical rules are the proper means to address inappropriate litigation conduct. As a result, insureds are not permitted to use even improper litigation behavior as evidence of 'bad faith.'
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.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.