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Expansion of Insurer Claw-Back Initiatives
A question routinely asked about liability insurance claims seems clear and straightforward on its face: “Is the claim covered?” Because “coverage,” however, typically invokes two concepts, rather than one, such a question often is superficial and misleading. Liability insurance policies, particularly at the primary and umbrella levels, usually provide both defense and indemnity coverage. Each coverage is quite valuable to policyholders, and the defense coverage can be the much more valuable of the two, particularly when underlying cases are complex and, accordingly, expensive to defend, but present little or no prospect of policyholder liability.
Of these two types of coverage, defense coverage also is widely understood to be the broader. In other words, a policy may provide defense coverage but, ultimately, no indemnity coverage. Such variances arise from the nature of “notice” pleading and the unpredictability of underlying litigation. Under “notice” pleading utilized in federal courts and most state courts, it often is difficult and sometimes impossible to discern with precision at the outset of litigation the full nature of all underlying claims against the policyholder. Even when such claims can be discerned with precision, it often is impossible to know at the outset which of the claims, if any, will be successful against the policyholder. When these factors all play out, it is common for insurers to have to pay defense costs but not indemnity costs. Hence, it is said that defense coverage is broader than indemnity coverage.
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.