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Director and Officer Exposure
The current economic environment, with resulting adverse effects on the financial results of many businesses, has spurred an increase in claims and investigations. Companies that have any relationship to the credit markets, certainly to include real estate development, financial services and the mortgage industry (as well as financial institutions, investment banks, REITs, investment advisers, hedge funds, investment companies and other professionals) should carefully review their D&O coverage, well before renewal time. The continuing adverse economic conditions have resulted in increased litigation outside the financial sector. Stockholder activism is increasing, giving rise to exposure to claims. As a result, it is prudent to assess indemnification provisions and arrangements together with D&O coverage and risk management functions.
Governmental and related investigations also are and will continue to be an ongoing result of adverse conditions, related unrest in the credit markets and economic conditions. While many D&O policies cover investigations related to possible or potential violations of applicable laws and regulations, definitions contained in the policy and related riders are all important. In connection with the renewal process, careful attention should be focused on definitions. The definition of “claim” covered by the policy is significant and should be as broad as possible. D&O policies are negotiable, at the time of purchase, on renewal or during the policy period.
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.