D & O Insurance

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For both public and private companies and their boards, directors and officers (D&O) insurance continues to be a critical component for mitigating potentially significant financial exposure from litigation. In the following guest post, Scott N. Sherman and Edgar A. Neely IV discuss key D&O policy terms and concepts for directors to know for that selection process. Scott and Edgar are both partners at the Nelson Mullins law firm. We would like to thank Scott and Edgar for allowing us to publish their article on this site. Here is the authors’ article.

Continue Reading Director Checklist for D&O Policies: 10 Key Terms and Provisions Boards Should Assess

One of the recurring issues in D&O coverage litigation is whether an individual director or officer was acting in an insured capacity when the conduct that gave rise to a claim occurred. Because directors and officers often serve in multiple roles, as executives, shareholders, investors, lenders, or guarantors, the capacity question can be complex, but the answer can be coverage dispositive.

Continue Reading Eighth Circuit: D&O Policy Does Not Cover Executives’ Personal Loan Guarantees

A frequently recurring coverage issue litigated in Delaware courts is the treatment of related claims and the consequences that flow from a determination that multiple proceedings are related. A recent Delaware Superior Court decision revisits those issues, this time in a dispute involving an insurer’s reliance on related-claims language in a policy retention provision to deny coverage for a derivative action.

Continue Reading Delaware Court: Retention Provision Is Not a Related-Claims Exclusion

The D&O insurance implications of M&A litigation often extend beyond claims against the company and its directors and officers. When financial advisers are drawn into transaction-related litigation, companies that have agreed to indemnify them may be required to reimburse defense costs and settlement payments, raising questions about the extent to which those amounts could be covered under a public company D&O insurance program.

A pending coverage dispute arising out of Cornerstone Building Brands’ 2022 take-private transaction highlights those issues. At the center of the dispute is whether amounts a company pays to indemnify its financial adviser for defense costs and settlement payments constitute covered Loss under a public-company D&O policy.  Below is a discussion of Cornerstone’s coverage complaint, the parties’ competing summary judgment arguments, and potential D&O underwriting implications.

Continue Reading Coverage Dispute Tests Limits of Side C Coverage

The latest episode of The D&O Diary Podcast is now available. Kevin LaCroix and Sarah Abrams are joined by their first podcast series guest, Marissa Streckfus, Vice President & Claims Manager at RT ProExec, to discuss the current private company D&O claims environment.

The conversation covers a range of topics, including private company business disputes, increasing antitrust exposures, bankruptcy-related claims, and the ways in which D&O policy structure can affect claims resolution. The episode also examines practical claims handling issues, including notice requirements, interrelated claims concerns, and other recurring coverage challenges.

Continue Reading The D&O Diary Podcast Series – Episode 5: Private Company D&O Claims

Since the dawn of time, one of the biggest D&O insurance coverage issues has been allocation – that is, the division of loss between covered and noncovered claims or between covered and noncovered parties. After a series of developments in the mid-90s, including the standardization of policy allocation language, litigated allocation disputes became less frequent (though to be sure, allocation is still very much an issue in many D&O insurance claims.) However, in recent years, there has been a series of Delaware court decisions revisiting both allocation issues and what has become the standard D&O insurance allocation provision.

In the latest example of the reemergence of litigated allocation disputes, a Delaware court has held that the “Larger Settlement Rule” should be used to resolve an allocation dispute, notwithstanding the presence in the applicable allocation provision of relatively standard “relative exposures” language. With this latest decision, and in light of the other recent Delaware allocation decisions, some differentiating principles can be discerned, as discussed below.

A copy of the Delaware Superior Court’s June 18, 2026, decision in the Hemisphere Media Group case can be found here. The July 10, 2026, LinkedIn post of Geoffrey Fehling of the Hunton Andrew Kurth law firm discussing the court’s allocation decision in the Hemisphere case can be found here.

Continue Reading Del. Court: “Larger Settlement Rule” Applies to Insurance Allocation Dispute

One of the most hotly – and frequently – contested D&O insurance coverage issues involves the question of the preclusive effect of the policy’s Bump-Up provision. There have been a host of decisions in recent years addressing this issue, with some finding in favor of coverage and some ruling against coverage. In the latest in this series of cases, the Delaware Superior Court held that the Bump-Up provision precluded coverage for the settlement of litigation arising out of the acquisition of Madison Square Garden Networks. As discussed below, the decision raises some interesting questions about the Bump-Up provision and how it is to be applied. A copy of the June 24, 2026, opinion in the case can be found here.

Continue Reading Del. Court: Bump-Up Provision Bars Coverage for Shareholder Settlement
Geoffrey Fehling
Charlotte Leszinske

One of the common situations in which D&O insurance is called into play is when a company’s board has been hit with a shareholder derivative lawsuit. In the following guest post, Geoffrey B. Fehling and Charlotte E. Leszinske examine a recent derivative suit and consider the D&O insurance issues that can arise in the derivative lawsuit context. Geoff is a Partner, Hunton Andrews Kurth LLP, and Charlotte is an Associate, Hunton Andrews Kurth LLP. A version of this article previously was published as a Hunton Andrews Kurth client alert. My thanks to Geoff and Charlotte for allowing us to publish their article as a guest post on this site. Here is the authors’ article.

Continue Reading Guest Post: Leveraging D&O Insurance for Shareholder Derivative Claims

On May 11, 2026, the Supreme Court of New Jersey issued a highly anticipated ruling, holding that when an individual’s actions span both insured and uninsured capacities, that overlap in role-based conduct is sufficient to trigger the D&O policy’s capacity exclusion. Affirming the July 9, 2024, Appellate Court decision, with modifications, the Court held that the exclusion properly precluded coverage for an individual acting in multiple capacities, specifically regarding underlying self-dealing claims. The D&O Diary previously covered the appellate decision, which had completely denied coverage in full.

Continue Reading New Jersey Supreme Court Affirms Broad Reading of D&O “Capacity” Exclusion