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All Sums Great And Small
How is loss allocated when bodily injury or property damage occurs in several successive policy periods? Can the insured choose the policy that it wishes to cover the loss, limiting itself to one deductible and forcing a single year”s primary (and excess) policy to respond? Or consistent with the policy, the rules of construction, and prudent public policy, should the loss be allocated evenly to each policy period in which injury or damage occurred ” allocating to the insured loss falling within each policy”s deductible and every period for which the insured is without insurance?
In answering these questions, courts have applied either the “all-sums” approach first set forth in Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981) or the “pro rata” approach pioneered in Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980). Courts across the country remain divided on which approach is the most sound as a matter of law and public policy. Moreover, as many as 20 states have either no or very limited case law on this complex and often hotly disputed subject, making predictions on outcomes in those jurisdictions difficult. Simply put, the results in Long-Term Exposure (“LTE”) cases are driven by the state law governing the dispute. And in many cases, that law is limited, leaving to insurers and their counsel the delicate task of predicting which set of competing principles a court will apply to an often-intricate array of facts.
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.