The Services We Provide
Complex Insurance Coverage and Litigation
American corporations are known for successful risk taking. One of the ways corporations manage risk is by contracting it out. Corporations commonly purchase highly sophisticated insurance policies that cover theft, errors, omissions, and environmental mishaps, and even claims that officers and directors incurred liability in corporate governance.
Each year, billions of dollars are paid by insurers to businesses to cover legitimate claims. Attorneys are key to this process, and are often called upon to provider interpretation and opinions about exposure and coverage. When disputes over interpretation and coverage arise- as they sometimes do- attorneys are retained by each side to provide advocacy and support in a process that inevitably leads to resolution.
Insurance Coverage For Corporations
Mr. Faul heads up the Corporate Policyholder Recovery Group, at Herold Law, P.A. Mr. Faul's practice group focuses on maximizing the claims amounts recovered under many lines of insurance including D&O E&O, public officials and employment liability fiduciary liability, commercial, property and casualty, fire, theft, premises liability, and other policies insuring risks facing corporations. It is augmented by a roster of nationally recognized experts in all aspects of insurance coverage litigation. Mr. Faul has published a number of articles covering insurance litigation issues and strategies and has been a commercial litigator for over 30 years. Corporations, officers, directors or individuals that are subject to government investigations may have insurance coverage to defray the costs associated with the defense of such costly investigations. These investigations may be initiated by the DOJ, SEC, U.S. Attorney's Office, CFPB, OCC, FinCen as well as state agencies such as the attorney general's office. Financial institutions, health care and financial sectors, financial service companies, insurance companies, security and commodity brokers and dealers, retail apparel companies, construction, waste management and a variety of other industry wide companies which may be regulated by federal, state and local agencies including state attorney general's offices can be the subject of such investigations.
Investigations may be initiated formally or informally through subpoenas, search warrants, informal requests for documents and witness interviews, civil investigation demands (CID's) or administrative orders. A corporation served with a subpoena may not be the target of the investigation but third parties whom the corporation conducts business with may be the target. There may be insurance coverage available even though the corporation or its officers or employees are not necessarily the target. Insurance coverage may also be available for a corporation's voluntary compliance/cooperation with governmental agencies and internal investigations. These investigations can go on for years and are extremely costly.
Policies that may insure for the defense of governmental investigations are typically claims made policies requiring the claim to arise during the policy period, and notice of such claim to be tendered to the insurance carrier prior to the expiration of the policy. Insurance coverage could be forfeited if the conditions precedents are not strictly adhered to. It is the corporate attorney or general counsel's obligation to inform the corporate client of the possibility that insurance may exist to defray the cost of a defense and immediate steps should be taken to ascertain the existence of such coverage. Corporate CFO's, Risk Managers and General Counsel should be alerted to this important issue of risk management.
If the corporate client is selling or providing products and services or receiving products and services in the U.S. that originate from or sold in countries where high corruption exists (the largest examples China, India, Russia, Brazil and Mexico), the FCPA (Foreign Corrupt Practices Act) applies criminal penalties if a company, its business partners, agents or consultants use bribes or future promises with government officials to obtain contracts, permits and other benefits.
The biggest problem with FCPA compliance is the failure of U.S. business managers and in-house counsel to focus on what needs to be done and to dedicate the resources necessary to protect the company. From the government's point of view, if a U.S. company is doing business outside the U.S., it is obligated to that business in compliance with the law. The DOJ and SEC have stated the required elements of a reasonable compliance program and expect every company to establish and run an adequate FCPA compliance program.
A Directors and Officers Liability policy may help to defray expenses of a FCPA defense. Some recently issued policies make specific FCPA references to include coverage for legal defense expenses of directors and officers in connection with an enforcement proceeding or with any shareholder derivate or class action. There may be coverage for settlement and possibly judgment amounts incurred by directors and officers in connection with these actions. When FCPA coverage is not in policy form, it may be available by endorsement. This is another reason to review policies at this time, prior to any civil FCPA challenge from the federal government.
Corporations cannot afford to have their insurance claims denied, delayed or underpaid. Mr. Faul's firm has obtained millions of dollars in recoveries from major national insurance companies, brokers and agents on behalf of our policyholder clients. Mr. Faul provides counsel on all phases of complex insurance claims. Mr. Faul ensures the proper and prompt presentment of claims, often utilizing nationally recognized experts in the field. He engages in negotiated alternative means of resolution, including mediation and arbitration. When necessary, Mr. Faul retains prominent form state and federal judges and litigate to trial significant insurance coverage disputes in state and federal courts.
Mr. Faul views corporations to be underserved in terms of their ability to maximize insurance claims recovery. Based on his experience litigating insurance claims for policyholders, he believes that many policyholders do not fully understand the potential for insurance companies to underpay, delay and/or deny legitimate claims. The Corporate Policyholder Recovery Group at Herold Law has the skill, resources and experience to match the firepower that large insurance companies deploy in responding to claims. Mr. Faul interprets insurance clauses and successfully searches for nuances and ambiguities in policy language. Corporate policyholder success at this level requires special experience, the ability to win complex claims cases with a professional claims team and witnesses with insurance industry experience.
Commercial real estate and land use
The firm handles the acquisition and development of residential, commercial, and industrial properties, including construction issues. Related legal services include attending to financing requirements, preparing transaction documentation, complying with land use, wetlands, and other environmental regulations, and appearing before local municipal agencies to obtain necessary approvals. In the preparation and presentation of municipal applications, the firm coordinates the services of architects, planners, environmental analysts, engineers, and other consultants. The firm also engages in litigation, which can be an essential part of such representation.