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Disparagement By Implication: Does an Insurer Owe a Duty to Defend?
General commercial liability policies often require an insurer to provide a defense for its insured against a claim that the insured's advertisements disparaged another company's products. An open issue is to what extent an insurer owes a duty to defend based on allegations of disparagement by implication. This situation arises most often when a competitor's product is not mentioned by name in the insured's advertising, but a negative reference is implied.
Two conflicting California appellate court decisions issued this year highlight the difficulty of determining when an insurer owes a duty to defend disparagement by implication claims. This article discusses the two divergent California decisions, as well as fact patterns that courts have generally agreed are (and are not) implied disparagement claims triggering an insurer's duty to defend.
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.
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.
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.