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Excess 'Follow Form' Policy Obligations: Determined By Primary Policy, Not By Primary Insurer
Liability policies affording excess coverage as part of a multi-layer liability insurance program commonly 'follow form' to the program's primary policy. These follow form policies are generally subject to the same terms and provisions as are contained in the primary policy, with certain standard exceptions (e.g., provisions regarding limits of liability, premium, notice, etc.) and other provisions that may be unique to a particular insured or risk. It stands to reason that excess insurers, in order to properly evaluate and price a risk and in agreeing to cover it, would rely at least to some extent on the followed terms and provisions of the primary policy and on the expectation that such terms and provisions will be applied as written.
However, it is not uncommon for primary insurers to pay policy limits in situations where a loss is arguably not covered or where coverage is validly disputed under the primary policy's terms. A primary insurer may decide to pay in such situations for business reasons (e.g., to win a lucrative renewal, build goodwill with an insured or broker, avoid costly negotiation or litigation, or save its own excess policy higher up in the program) or perhaps because it concluded, based on its own mistaken interpretation of policy terms, that there is coverage. Such a decision may not always be consistent with the interests or interpretations of a follow form excess insurer, and an issue may arise as to whether the excess insurer is bound by the primary insurer's actions.
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.