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A Primer on the Pollution Exclusion in New York and the Duty to Defend
In June and July of this year, the New York Court of Appeals and the Second Circuit each rendered a new decision on the proper scope and application of the pollution exclusion under New York law with respect to the duty to defend. In Belt Painting Corp. v. TIG Insurance Co., 100 N.Y.2d 377 (N.Y. 2003), the New York Court of Appeals held that an absolute pollution exclusion did not unambiguously exclude coverage for a personal injury claim asserting injury based on paint fumes inside an office building. In W.R. Grace & Co. v. Continental Casualty Co., 332 F.3d 145 (2d Cir. 2003), the Second Circuit held that New York's historical statutory proscription against the insurance of nonsudden, nonaccidental pollution vitiated a policy provision granting coverage for “gradual pollution.” The Second Circuit also confirmed in an important choice-of-law ruling that New York courts will not apply the law of various “site states” to a general liability policy; rather, New York courts will apply the single law of the state with the greatest contacts to the dispute. These cases provide further guidance to practitioners regarding (a) the limited scope of the pollution exclusion under New York law to nonenvironmental type claims, (b) the priority given to New York Insurance Law '46(13)-(14) in the face of conflicting policy provisions, and (c) the growing certainty that New York courts will apply the law of a single state to interpret a policy covering multiple risks in various locations.
Belt Painting Corp.
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.
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.
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.
CLE Shouldn't Be the Only Mandatory Training for Attorneys
Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.
Discovery of Claim Construction and Infringement Analysis May be Compelled Prior to a Markman Hearing
A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.