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The Allocated Share Set-Off Rule: New York Enters the Debate
Long-tail environmental and toxic tort claims have spawned decades of hard-fought insurance coverage litigation. As the litigation has matured, judges have been forced to fashion rules that allow the courts and litigants to navigate between the desire for coverage, the reality of insurance contract terms, the dictates of public policy, respect for precedent, and the requirement that judicial solutions be practical.
The “allocated share set-off rule” is an excellent example of the judiciary working through these conflicting goals. Stated generally, the rule provides that where numerous liability insurance policies are triggered by a “long-tail” loss or losses, and the insured settles with some, but not all, of its insurers, the non-settling insurers may set off any portion of the overall liability properly allocable to the settled insurers' policies. Critically, this right applies pre-payment, i.e., the non-settling insurers need not make payment and then attempt to recoup the amounts allocable to settled policies; instead, they may exercise their set-off right prior to any payment.
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.