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New York's No Prejudice Rule
New York law has traditionally been more faithful than that of many jurisdictions to the principle that an insurance contract, like any other, is “to be construed according to the sense and meaning” of its terms and, if those terms are clear and unambiguous, they are to be “taken and understood in their plain, ordinary, and proper sense.” Preston v. Aetna Insurance Co., 193 N.Y. 142 (1908).
As the New York Court of Appeals once more colorfully put it, “Unless we are prepared to adopt the theory of the cynic that language was invented for the purpose of concealing thought, we have no right to disregard the clear provisions which defendant inserted in the policy and which plaintiff accepted.” Johnson v. Travelers Insurance Co., 269 N.Y. 401 (1936). This respect for the written word in the contract of insurance has resulted in New York's rule that an insured which breaches a policy condition is barred from recovery in the same manner as any other contracting party which breaches
a condition of a contract, without any attendant requirement that the insurer demonstrate prejudice as a result of the breach. As succinctly stated by Justice Cardozo, “When the condition was broken, the policy was at an end[.]” Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 277 (1928).
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.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.