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Misrepresentation: Insurance Company Efforts to Avoid Statutory Requirements
More than a century ago, many states began to protect policyholders from insurance company efforts to deny coverage on the grounds of alleged falsehoods in the application for insurance, when such alleged misstatements were not material to the insurance company's decision to sell the coverage. While insurance companies have attempted by various methods to avoid such protections, courts generally have rejected these efforts and upheld statutory limitations on an insurance company's right to void coverage.
Statements in an application for insurance can be considered either representations or warranties. See, e.g., Allstate Ins. Co. v. Boggs, 271 N.E.2d 855, 858 (Ohio 1971). If an allegedly incorrect statement is considered a representation, the insurance company must prove that it is material (or possibly that it was intentionally fraudulent) before it can succeed in a misrepresentation defense or rescission action based on the alleged misrepresentation. See, e.g., Lee R. Russ & Thomas F. Segalla, Couch on Insurance, '81:26 (3d ed. 2007). A statement is material if it affected the insurance company's decision to sell coverage or establish the premium. See, e.g., Mitchell v. United Nat'l Ins. Co., 25 Cal. Rptr. 3d 627, 638 (Ct. App. 2005). If, however, the statement is considered a warranty, the insurance company need only show that the statement was untrue. It need not show that the misstatement was material in order to succeed in defeating coverage. Couch '81:26.
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.