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Is an Insurer Obligated to Defend the Prosecution of Affirmative Claims on Behalf of Its Insured?
The typical commercial general liability (“CGL”) policy requires insurers “to defend any suit against the insured seeking damages on account of ' bodily injury or property damage to which this insurance applies.” This plain, unambiguous language restricts the insurer's duty to defend suits for damages “against” the insured. Courts undertaking a thorough review of the policy language consistently rule that an insurer has no duty to defend an insured's affirmative claims (e.g., counterclaims, cross-claims, or third-party demands). Nevertheless, over the past two decades, some courts have abdicated their judicial obligation to enforce this plain, unambiguous policy language.
Instead, some jurisdictions apply a manufactured legal analysis of whether the insured's affirmative claims are “intertwined with” and “necessary to” the insured's defense. If they are, then the courts hold the insurer responsible for the costs associated with the affirmative claims. This test is unsupported by any policy language. Also, as discussed below, this test produces wildly varying results, leaving both the policyholder and insurer in an unpredictable forum. Parties to a contract are better served if the courts base their rulings on the unambiguous policy language, thereby eliminating unexpected results for both parties.
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.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
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.