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Notice-of-Circumstances Provisions in Claims-Made Policies
As insurers under D&O policies respond to the claims activity likely to be generated by the subprime mortgage crisis, they should consider whether their policyholders are complying with notice provisions commonly found in 'claims-made' policies dealing with notice of potential claims and the submission of claims outside of the current policy period. This easily overlooked issue has potentially serious consequences for an insurer ' affecting the scope of its coverage obligations and the exposure of its limits. In coverage litigation, courts have often found that policyholders who fail to comply with these 'notice-of-circumstances' clauses are not entitled to coverage.
Generally, D&O, bankers' liability, and other claims-made insurance covers the liability of professionals to third parties only for claims that are both made (against the insured) and reported (to the insurer) in the same policy period. A limited exception to this rule, however, is carved out by notice-of-circumstances clauses typically found in claims-made policies. These clauses enable policyholders to obtain coverage for claims made against them after the policy's expiration but only if, before the policy period ends, they notify the insurer in writing of specific facts and circumstances they reasonably expect to lead, after the expiration of the insurance, to a claim against them. As to subsequently-made claims which actually do arise from the circumstances of which the insured notified the insurer, notice-of-circumstances provisions essentially enable insureds to keep any policy limit remaining on their expiring coverage in place during the succeeding policy period. Clearly, in the wake of the subprime crisis, policyholders with subprime exposures may seek to give notice of circumstances regarding their activities that may give rise to claims.
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.