As a result of the economic fallout from the coronavirus outbreak, a number of businesses will struggle to survive. Some may wind up in bankruptcy. Indeed, a May 28, 2020 Harvard Business Review article (here), suggests that there could even be a “bankruptcy pandemic” – an “explosion” of bankruptcy proceedings that could “overwhelm” the bankruptcy courts. A number of companies have already filed for bankruptcy, and there undoubtedly will be more to come.

D&O insurance underwriters are well aware of these concerns, and are taking these possibilities into account, both with respect to the financial underwriting they are requiring, and with respect to the terms and conditions they are offering. In some instances, the D&O underwriters are including bankruptcy exclusions or creditors’ claims exclusions among the terms offered. These exclusionary provisions potentially represent a significant diminution of coverage. However, a recent law firm memo raises the question whether or not the type of bankruptcy exclusion that some carriers are offering are, in fact, even enforceable.
Continue Reading A Current Hot D&O Insurance Question: Are Bankruptcy Exclusions Enforceable?

Peter M. Gillon

In a recent post (here), I discussed the possibility investigative, regulatory, and enforcement actions in connection with funds disbursement under the Paycheck Protection Program. In the following guest post, Peter M. Gillon of the Pillsbury Winthrop Shaw Pittman LLP law firm takes a closer look at the kinds of claims that may arise in connection with the PPP, as well as the D&O insurance issues that the claims may present. A version of this article previously was published as a Pillsbury Client Alert. The author wishes to acknowledge the assistance of Daniel Gillon (Duke Law 2021). I would like to thank Peter for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Peter’s article.
Continue Reading Guest Post: Implications of PPP Certifications for D&O Coverage

Readers know that I have been following the SEC enforcement action and the securities class action litigation arising from Tesla CEO Elon Musk’s infamous “take private” tweets. I recently noted that the court in the securities suit about the tweets ruled that the case can go forward. I am sure I am not the only one who has wondered while thinking about these events what kind of D&O insurance Tesla carries. While the question of what kind and amount of D&O insurance might be applicable to the pending claims is interesting, what may be even more interesting is that, according to a recent SEC filing, Tesla recently decided to forego D&O insurance for the current period based on an undertaking by Musk to provide the company and its board with equivalent “coverage,” as discussed below.
Continue Reading In Lieu of D&O Insurance, Musk Agrees to Provide Tesla with “Coverage”

At Noon EDT on Wednesday April 22, 2020, I will be participating in a free hour-long Business Insurance webinar with my good friends Priya Cherian Huskins of Woodruff Sawyer and Bill Passannante of the Anderson Kill law firm on the topic of D&O Risks from COVID-19. The session will be moderated by Business Insurance’s Gavin

As I have noted in numerous post on this blog (most recently here), among the many different types of fallout from the current coronavirus outbreak are the potentially significant implications for corporate liability and for D&O insurance. In the following guest post, Lawrence J. Bracken, Geoffrey B. Fehling and Lorelie S. Masters of the Hunton Andrews Kurth LLP law firm consider these implications, including the types of claims that may arise and the impact the pandemic may have D&O insurance policyholders and their insurers. I would like to thank the authors for allowing me to publish their article on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to publish a guest post. Here is the authors’ article.
Continue Reading Guest Post: D&O Insurance Issues Arising from the COVID-19 Crisis

Much has changed since I published my first coronavirus-related post a month ago. The number of confirmed cases and of deaths has soared. Much of the country is now on lockdown. School, work, business — so much of basic social and economic activity has stopped. Much has changed in the D&O arena as well. There have been both claims and underwriting developments, and a number of trends have emerged. In the post below, I discuss some of these developments and trends. I recognize that my observations are limited by my own personal perspective; it is my hope that others will share their observations about the current environment using the comment feature to add their views to this post.
Continue Reading Coronavirus and D&O Insurance: An Interim Update

Three weeks ago, as part of a Professional Liability Underwriting Society (PLUS) series of recorded discussions on the professional liability insurance implications of the COVID-19 Coronavirus outbreak, I participated in a short recorded conversation on the viral outbreak’s D&O insurance implications with my good friends Carl Metzger of the Goodwin Procter law firm and Rob

David Topol

Private investments funds (hedge funds, PE firms, venture capital funds and the like) are a significant part of the U.S. economy. From a management liability insurance perspective, private investment funds present unique underwriting and claims issues. In the following guest post, David Topol, takes a detailed look at these kinds of enterprises, and considers the relevant claims and insurance issues. David is a partner in the insurance practice at Wiley.  He has substantial experience over the past fifteen years representing insurers as monitoring counsel and in coverage litigation on policies issued to investment advisers, private funds and broker-dealers.  A version of this article will be published in a forthcoming issue of the Wiley law firm’s Executive Summary blog. I would like to thanks David for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is David’s article.
Continue Reading Guest Post: Private Investment Fund Claims from an Insurance Perspective

John F. McCarrick

As I have noted in prior posts, among the many implications from the current coronavirus outbreak is the possibility that the pandemic might result in D&O claims. This possibility in turn has a number of D&O insurance underwriting implications. In the following guest post, John F. McCarrick, a partner in the White & Williams law firm, takes a look at these possible underwriting implications. A version of this article previously was published as a White & Williams client alert. I would like to thank John for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers.
Continue Reading Guest Post: Underwriting D&O Risks for Coronavirus (COVID-19)-Related Exposures

On March 10, 2020, as part of a Professional Liability Underwriting Society (PLUS) series of recorded discussions on the possible professional liability insurance implications of the COVID-19 Coronavirus outbreak, I participated in a short conversation on the viral outbreak’s D&O insurance implications. Joining me for the conversation were my good friends Carl Metzger of the