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Rulings of interest to you and your practice, nationwide.
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While continuing to fight the decades-old battle with asbestos, corporate policyholders increasingly are confronting another substance that plaintiffs allege can cause serious injury if inhaled: silica — a common mineral found in sand, granite and concrete, among other materials.
Highlights of the latest insurance cases from around the country.
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As the law of insurer bad faith evolves, the question of whether policyholders are entitled to a jury trial of their claims, or parts of their claims, comes increasingly into focus. In cases where the policyholder alleges bad faith in the manner in which a claim is investigated or handled — so-called "procedural" bad faith — factual issues for the jury often abound. But when an insurer timely and clearly declines coverage following an adequate investigation, should the "reasonableness" of that declination be submitted to a jury? From both a practical and a policy perspective, the answer in most cases should be no.
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National rulings of interest to you and your practice.
Several U.S. appellate courts have expressed discomfort with the breadth of 18 U.S.C. ' 666 ("Theft or bribery concerning programs receiving federal funds") because its literal language makes certain theft and bribery federal crimes even when there is arguably no federal interest. Some circuits construed the statute to require a federal nexus to the wrongdoing, but each circuit that did so adopted a different test. Others refused to limit the statute at all. The Supreme Court last term purported to resolve the circuit split by affirming Congress's power to prohibit the corruption of entities that receive at least $10,000 in federal funds, regardless whether the crime has a federal nexus. <i>United States v. Sabri</i>, 124 S. Ct. 1941 (2004). Sabri rejected the constitutional limits courts had added to the statute, but it did not address the view of some courts that certain words within ' 666 express Congress's intent to limit the statute's reach on grounds of federalism.
Encouraged by recent amendments to the Organizational Sentencing Guidelines, federal prosecutors are pressuring target companies to turn on their employees in ways that were unthinkable a few years ago ... Target companies have become active extensions of the government for purposes of coercing their employees into jeopardizing any opportunity they have to mount a successful defense against possible criminal charges.
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In the legislative process that led to the adoption of Sarbanes-Oxley (SOX), legislators from both sides of the aisle vied with each other to establish their credentials for being tough on white-collar crime. The maximum penalties for mail fraud and wire fraud were increased from 5 to 20 years. Pub. L. No. 107-204 ' 903. The maximum penalty for willful violations of any provision of the Exchange Act or rule or regulation adopted thereunder the violation of which is unlawful was increased from 10 to 20 years. Pub. L. No. 107-204 ' 903. If this were not enough, a new crime relating to securities fraud in connection with the securities of public companies with a maximum penalty of 25 years was created. Pub. L. No. 107-204 ' 807 This does not exhaust the list, but should be sufficient to suggest that there are more than enough post-SOX criminal laws covering financial fraud to deter rational corporate officers and others to refrain from participating in financial crimes.
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Recent rulings of importance to you and your practice.
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It is the uncommon occasion when creditors seek the Bankruptcy Court's assistance to impose a settlement that compromises the debtor's asserted rights to recovery against third parties. While settlements are typically preferable to the debtor's engagement in contested and costly litigation, it is a challenge to convince a court to compromise a debtor's asserted claims. In a recent case in the United States Bankruptcy Court for the Southern District of New York, a settlement was negotiated and ultimately approved by the Bankruptcy Court over the vigorous objection of the debtors-in-possession (the "Debtors"), resolving a hotly contested adversary proceeding and third party claims.
