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Extrinsic Evidence and Conditional Reform
In coverage litigation, insurers often treat extrinsic evidence as if it were radioactive material, and there is some justification for this instinct. Generally, consideration of extrinsic evidence connotes an ambiguity in policy language, and there are several reasons why insurers seek to avoid arguing, or even intimating, that the language at issue in an insurance policy is ambiguous. Most obvious, if consideration of extrinsic evidence cannot resolve the ambiguity, a finding of ambiguity sometimes leads courts to the doctrine of contra proferentum, the canon of contract construction that construes ambiguities in certain contracts against the drafter. See, e.g., St. Paul Fire & Marine Ins. Co. v. Pryseski, 438 A.2d 282, 288 (Md. 1980). While not an inevitable result, application of the doctrine of contra proferentum most often inures to the insurer's detriment.
In addition, the notion of a potential ambiguity in contract language can lead to burdensome and expensive discovery into extrinsic evidence of intent, with much of the extrinsic 'evidence' sought in coverage litigation more noteworthy for its invasiveness than its actual or potential probative nature. Finally, as repeat players in coverage litigation, insurers must be wary of how an assertion or intimation that policy language is ambiguous will impact coverage disputes involving identical or similar language, even if the collateral effect of such an argument in the existing coverage dispute is insignificant. All of these considerations tend to make insurers reluctant to urge a court to consider extrinsic evidence in coverage litigation or to suggest that the policy language at issue is ambiguous.
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.