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A Viking on Choppy Waters
When the New York Court of Appeals issued its decision in Consolidated Edison Company v. Allstate Insurance Co. 98 N.Y.2d 208 (2002), the issue of allocating liability for continuing losses among multiple insurers consecutively liable for the loss appeared to be all but settled. Con Ed held that under policies providing coverage for “all sums” attributable to damage occurring “during the policy period,” where there was no ability to pinpoint exactly when the loss occurred, the most equitable means of apportioning the liability for the losses is in direct proportion to each insurer's time on the risk, absent policy language to the contrary. Although the Con Ed court cautioned that it had not delivered “the last word on pro-ration,” in practice New York courts have presumed that pro rata allocation will apply in continuing injury cases involving standard CGL policy language absent unusual circumstances. See, e.g., Serio v. Public Service Mut. Ins. Co., 759 N.Y.S.2d 110 (App. Div. 2nd Dep't 2003).
This approach to allocation has been called into question, however, by the recent decision of the Delaware Court of Chancery in Viking Pump, Inc. v. Century Indem. Co., 2009 WL 3297559 (Oct. 14, 2009). Purportedly applying New York law, the Viking Pump court concluded that non-cumulation and prior insurance clauses in the policies at issue effectively trumped an express limitation of coverage to injuries taking place “during the policy period.” The court reached this conclusion by applying presumptions, unprecedented in New York law, that exposure to asbestos rather than injury triggers general liability coverage and that each claimant's exposure to asbestos invariably constitutes a separate occurrence. In charting this novel route to its all-sums result, Viking Pump not only distorts New York's allocation rules in favor of contrary Delaware law, but also muddies other deep waters of New York coverage jurisprudence including the law governing trigger and number-of-occurrences.
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.
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.
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.