Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Lengthy Crimes, Limited Coverage: Recent Case Law Follows the 'One Policy Limit' Approach
In recent years, newspaper headlines have focused on a variety of financial scandals that have unfolded over long periods of time. The largest Ponzi scheme in history, arising from the activities of former NASDAQ chairman Bernard Madoff, resulted in $50 billion of investor losses over 15 years. Attorney Mark Dreier sold $100 million of false promissory notes to third parties over a four-year period, while Florida attorney Scott Rothstein is alleged to have operated a five-year, $1 billion Ponzi scheme. Some commentators posit that commercial crime insurance may provide coverage for such losses. That proposition is highly debatable, and, even if such coverage is available, it is unlikely to provide significant protection, given recent precedents construing how claims arising from long-ensuing criminal activities should be allocated between and among successively issued policies.
By way of background, commercial crime insurance (also known as “fidelity bonds,” “fidelity insurance,” and “employee dishonesty insurance”) generally provides coverage to employers for losses related to an employee's fraudulent conduct. Policies typically contain limits of coverage that apply on an “occurrence” basis, often defined as “an act or series of acts” by an employee. In insurance law generally, the majority of courts define an occurrence in terms of its cause. Barry R. Ostrager & Thomas R. Newman, 1 Handbook on Insurance Coverage Disputes ' 9.02 (15th ed. 2009). In the crime policy context, however, courts are split as to whether a crime committed by an employee over a multi-year period constitutes one occurrence or multiple occurrences or can trigger more than one policy.
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.