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Coverage Litigation Should Be Stayed to Avoid Prejudice to the Insured
More and more often insureds are being forced to litigate with their insurers to protect rights under insurance policies, while at the same time those insureds must actively defend against the very litigation for which they seek insurance coverage. Indeed, insurers often will pursue litigation against their insureds to establish the absence of any coverage obligation if there appears to be a question regarding the existence of a defense or indemnity obligation with respect to underlying litigation. Alternatively, due to potentially applicable statutes of limitation, or a need to seek judicial intervention to force an insurer to assist in an underlying defense for which the insurer has refused coverage, an insured may be required to file coverage litigation before underlying litigation is concluded.
In either circumstance, the insured can be prejudiced by being forced to litigate on 'two fronts,' expending resources in coverage litigation that should be reserved to adequately defend against the underlying litigation. Additionally, to the extent that insurers seek to rely upon issues being litigated in an underlying action as the basis to avoid coverage, there is a clear risk that the insured will be required to litigate the same issues in two different courts before two different judges. This is inefficient and can lead to inconsistent results to the detriment of the insured. Underlying defense counsel also could be required to become involved in the coverage action, in an effort to ensure that issues at the heart of the underlying action are adequately resolved in the coverage litigation. This, of course, further depletes resources that should be focused solely upon defeating the claims in the underlying action. Indeed, allowing an insurer to attack its insured in coverage litigation on the same grounds asserted by underlying plaintiffs in underlying litigation, instead of assisting its insured in its defense against those very claims, is counterintuitive to the concept of insurance.
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.