A recent appellate court opinion interpreting a D&O liability insurance policy securities exclusion carries some important reminders both about policy wording precision and about exclusionary language, and also raises some critical questions about the scope of coverage for securities claims generally.
In an October 27, 2008 opinion (here), the Eighth Circuit, applying Minnesota law, held in the In re SRC Holding Corp. case that there is no coverage under a D&O liability insurance policy containing a securities claims exclusion for claims made against a financial services company and certain of its directors and officer for alleged wrongful acts in connection with the company’s underwriting and sale of certain municipal bonds.
Following a description below of the case’s background and the appellate court’s holding, I discuss the implications of the Eighth Circuit’s decision.
Between 1996 and 1999, Miller & Schroeder (M&S), a securities underwriter and broker, underwrote and sold $140 million of municipal bonds. The bonds later defaulted and the bond investors initiated lawsuits and arbitration proceedings against M&S and certain of its directors and officers, alleging breaches of federal securities laws and other violations. M&S ultimately went into bankruptcy.
M&S’s D&O insurance carrier denied coverage for the claims. The bankruptcy trustee initiated a lawsuit against the D&O insurer alleging breach of contract and seeking a judicial declaration of coverage. The individual M&S directors and officers intervened in the trustee’s action.
The bankruptcy court held that the policy exclusion on which the insurer relied to deny coverage did not preclude coverage for all of the claims and that the carrier must defend the individuals against all claims. The district court affirmed the bankruptcy court’s ruling and the carrier appealed.
The Eighth Circuit’s Decision
On appeal, the carrier argued that the district court erred in finding that the policy required the carrier to provide the directors and officers with defense cost coverage and indemnification for the bond investors’ claims.
The carrier relied on Endorsement No. 3 to the policy, which provides that:
In consideration of the premium charged, this Policy does not apply to any Claim based on, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged violation of:
(1) the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, any other federal law, rule or regulation with respect to the regulation of securities, any rules or regulations of the United States Securities and Exchange Commission, or any amendment of such laws, rules or regulations; or
(2) any state securities or "Blue Sky" laws or rules or regulations or any amendment of such laws, rules or regulations; or
(3) any provision of the common law imposing liability in connection with the offer, sale or purchase of securities.
The district court held that this exclusion precluded coverage only for M&S’s sale of its own securities, but not otherwise. In reaching this conclusion, the district court relied in part on the testimony of the insurance broker who sold the policy, who testified, according to the appeals court, that "this standard-form securities exclusion is typically intended to exclude coverage for liability resulting from the insured’s sale of its own stock."
As the appeals court paraphrased the district court’s logic, because the provision had a "typical effect," the meaning of the provision "must accord with that typical effect." The district court said that this was the only interpretation that "makes sense."
The appeals court held, however, that the district court erred in relying the broker’s testimony. Because the district court held (correctly in the appellate court’s view) that the provision is unambiguous, it was erroneous as a matter of Minnesota law for the court to rely on extrinsic evidence in interpreting the provision.
The Eighth Circuit said that "the effect of [the securities exclusion] as it may be generally applied in practice is not the legal authority that governs our coverage inquiry here; it is the mutually agreed-upon policy’s plain language that binds [the parties] in the first instance." The appeals court noted that
Sophisticated business entities who rely on experts to advise them are best suited to determine what makes the most economic sense and the language they have mutually negotiated and agree to is the best evidence of what those parties intended.
The appeals court held that the endorsement is "not limited to claims arising out of M&S’s sale of its own securities," as such a limitation "is nowhere to be found in its language."
The appeals court also rejected the suggestion that this interpretation was inconsistent with other provisions in the policy.
The insureds argued further that in any event coverage for claims against them for alleged violations of NASD rules were not precluded, and therefore that the carrier was obliged to fund the defense, even as to non-NASD proceedings.
The appeals court rejected this argument as well, in reliance on the Endorsement No. 3’s broad preamble ("based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving…"), as well as the policy’s provisions broadly treating interrelated matters as a single claim.
Because the alleged NASD violations "arise out of, flow from and have their origins in the same set of operative facts" as the claims alleging violations of the securities laws, for which coverage is broadly excluded under the policy, they fall "well within the ‘arising out of’ exclusionary language of Endorsement No. 3."
The Eighth Circuit’s ruling is noteworthy in and of itself, as a federal appellate court decision vigorously holding that insurance policies negotiated between sophisticated parties must be interpreted strictly according to their terms.
The opinion also represents a cautionary tale for practitioners in this area, and it is well worth considering more fully in that light.
None of my remarks are meant in any way as a criticism of the broker involved. Clearly, the broker’s view of how this policy should operate had a substantial basis, as both the bankruptcy court and the district court adopted the broker’s interpretation.
However, the Eighth Circuit’s opinion is a harsh reminder that, notwithstanding what the common understanding may be about the meaning or operation of policy provisions, ultimately courts will look at a policy‘s actual language. As the Eighth Circuit’s opinion demonstrates, a court’s policy interpretation may or may not coincide with common understandings or expectations. For practitioners in this area, the appellate court’s ruling underscores that what matters is wording not intent.
In addition, the court’s reliance on the breadth of Endorsement No.3’s exclusionary preamble is a reminder of the inclusive nature of this type of omnibus language. The Eighth Circuit found that the use of this broad preamble substantially extended the reach of the provision’s exclusionary effect, which represents its own reminder to practitioners of the critical importance of the way in which policy provisions are framed, particularly policy exclusions.
A critical part of the coverage dispute here relates to the fact that the securities violations alleged arose not in connection transactions involving the insured company’s own securities. This aspect of the dispute raises a more general question about how, in the absence of a securities claim exclusion, D&O insurance policies should respond to claims of securities law violations asserted by persons other than the insured company’s own shareholders.
There have been some high profile 2008 examples of securities lawsuits filed by persons other than the defendant company’s own shareholders. The numerous auction rate securities claims represent one example. Another example is the securities class action lawsuits filed against, among others, Hexion Specialty Chemical and certain of its directors and officers by shareholders of Huntsman Corporation. The Huntsman shareholders alleged that the Hexion defendants "deceived the investing public regarding Hexion’s efforts and intentions with respect to the merger with Huntsman." (Refer here for further background about the Hexion claim).
These recent examples, as well as the M&S case discussed above, underscore the possibility of securities allegations by persons other than a company’s own shareholders. These kinds of claims can arise not only in connection with financial companies, like M&S and the companies involved in the auction rate securities cases, but can also involve non-financial companies, like Hexion.
Questions of policy coverage for these types of securities lawsuits potentially could be significant not only in connection with the type of exclusionary language in the M&S case, but also in connection with the definition of "securities claim" found in the typical D&O insurance policy.
There are standard formulations for the definition of the term "securities claim." One formulation is oriented toward claims arising under the securities laws and the other is oriented toward claims involving the issuer’s securities or the issuer’s securities holders.
Definitions of the term "securities claim" oriented toward the securities laws themselves will extend more broadly without respect to who has asserted a claim and are more likely to encompass securities lawsuits filed by persons other than a company’s own shareholders.
Definitions of the term "securities claim" tied to claims involving the company’s own securities, rather than more broadly to claims involving the securities laws generally, could be interpreted more narrowly with respect to securities lawsuits brought by persons other than the company’s own shareholders.
All of which begs the question: how should the policies respond to securities lawsuits against insured persons filed by claimants other than the company’s own shareholders? In my view, because these claims allege wrongful acts by persons insured under the policies, they represent precisely the kind of litigation for which the policy should provide coverage. Of course, whether any particular policy will respond to this kind of claim depends on the actual policy language.
Financial Collapse: The Board Game: According to a November 28, 2008 Financial Times article entitled "Icelanders Collapse in Laughter" (here), some Icelanders, tapping into their typically "darkly ironic sense of humor" have developed a board game "that takes a grimly comical swipe at the financial crisis that has devastated the economy."
Players roll dice and move around the game board while drawing cards that, for example, allow them to buy a private jet or obtain a foreign loan, or perhaps go bust. Icelanders have been suggesting additional content for the cards via the Internet. Among other cards suggested is one reading "Go to demonstrate at parliament, stop to buy some eggs to throw, only to realize that prices have gone up so much you can’t afford them."