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How Preclusion of an FDIC Action Under the Insured v. Insured Exclusion Could Change D&O Coverage
The 2008 financial crisis might be behind us, but coverage disputes stemming from the flood of lawsuits brought by the Federal Deposit Insurance Corporation (“FDIC”) against directors and officers of failed banks are far from over. With the FDIC filing lawsuits against more than 1,200 individuals for directors and officers liability between January 2009 and August 2015, coverage continues to be hotly contested across the country, with the most heavily litigated issue being whether a lawsuit commenced by the FDIC as a receiver of a failed bank is precluded by the “insured v. insured” exclusion commonly contained in Directors and Officers liability (“D&O”) policies. See FDIC, http://1.usa.gov/1NdXuA1.
The application of this exclusion, which precludes coverage for claims based on suits brought by one insured against another, has yielded mixed results. Although some courts have held that insured v. insured exclusions preclude coverage because the FDIC “steps into the shoes” of the company when it brings lawsuits against directors and officers in its capacity as a receiver; other courts, representing a growing consensus favoring coverage, have held that the application of the exclusion in the FDIC context is ambiguous and must be construed against the insurer. However, a recent decision by the U.S. Court of Appeals for the Tenth Circuit departs from the coverage trend and raises issues that are likely to change the D&O landscape going forward.
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.