A recent judicial ruling out of the U.K. provides an interesting perspective on directors’ duties under applicable law when a bankrupt company is in liquidation. As discussed below, the Court held that a director’s duties continue in relevant respects even if the director’s powers cease as of the date of the bankruptcy filing. The circumstances of the case provide an interesting example of a claim that arose against a former director post-liquidation. As discussed below, the circumstances also provide an illustration of why the purchase of post-liquidation run-off coverage is advisable. Though the circumstances arose under U.K. law, the situation bears enough similarities to what might arise under equivalent U.S. law that the liability and insurance lessons are instructive even in the U.S. context. Continue Reading Directors’ Duties in Insolvency and the D&O Insurance Implications

Policy exclusions with the broad “based upon or arising out of” sometimes may be applied very broadly to sweep beyond the claims that the exclusion aimed to exclude. In a recent coverage dispute, a professional liability insurer sought to apply an exclusion with the broad preamble language and precluding coverage for ERISA and securities law claims in order to preclude coverage even the common law and bankruptcy law claims alleged against the insured. In a February 7, 2020 opinion (here), Eastern District of Michigan Judge Laurie J. Michelson, applying Michigan law, concluded that the exclusion’s preclusive effect did not apply to the common law claims, because the insurer failed to establish the exclusion’s required causal connection between the alleged statutory violations, on the one hand,  and the common law and bankruptcy law claims, on the other hand.  Judge Michelson’s opinion provides an interesting perspective on exclusions with the broad “based upon and arising out of” preamble language. Continue Reading Broad Form Statutory Claims Exclusion Does Not Preclude Coverage for Common Law Claims

In numerous prior posts, I have meditated on the meaning of “relatedness” and what it takes to make two claims sufficiently similar that they should be treated as the same claim. That was the question that a Pennsylvania federal district court addressed in a recent decision in an insurance coverage dispute. As discussed below, on January 27, 2020, Eastern District of Pennsylvania Judge Timothy J. Savage, applying Pennsylvania law, concluded that, despite overlaps, a subsequent shareholder derivative suit was not sufficiently related to another shareholder’s prior demand letter and lawsuit to preclude coverage for the later claim. The court’s decision provides abundant grounds for further ruminations on the meaning of relatedness. Continue Reading Despite Factual Overlap, Later Claim Unrelated to Prior Demand and Suit

In the following guest post, Paul Ferrillo, a partner in the McDermott, Will & Emery law firm, takes a look at Excess Side A insurance and discusses its importance as part of a well-structured D&O insurance program. I would like to thank Paul for his willingness to allow 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 Paul’s article. Continue Reading Guest Post: Side A Excess D&O Insurance: Why Directors Need a Lot of It — Now!

In business meetings during my recent European visit, one topic that came up is the widespread liability risks arising out of the opioid crisis. One particular question I was asked was whether, in addition to everything else, the opioid crisis presented D&O risks. I was quick to refer to the various U.S. securities class action claims that have arisen (about which refer here) and to assure my hosts that there were indeed many other opioid-related D&O claims as well. Among the other opioid-related D&O claims is the shareholder derivative action that was filed against the board of McKesson Corp. As it turns out, the McKesson derivative suit recently settled, for an agreement to pay $175 million. As discussed below, this settlement, which is subject to court approval, and which is one of the largest derivative settlements ever, is to be funded entirely by D&O insurance. Continue Reading McKesson Opioid-Related Derivative Suit Settles for $175 Million

In the following guest post, Alison Finn, Claims Counsel, DWF Claims; Elan Kandel, Member, Bailey Cavalieri; and James Talbert, Associate, Bailey Cavalieri, take a look at the most important management and professional liability coverage decisions for 2019, involving the perennial coverage issues for insurers and policyholders. I would like to thank Alison, Elan, and James for allowing me to publish their 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 the authors’ article. Continue Reading Guest Post: Key 2019 Management and Professional Liability Insurance Coverage Decisions

Eric C. Scheiner
Jennifer Quinn Broda

The long-standing and traditional view is that corporations’ objectives should be to maximize shareholder value. More recently, a variety of commentators and observers have argued that corporations have larger social responsibilities. However, as discussed in the following guest post from Eric C. Scheiner and Jennifer Quinn Broda, efforts by companies to fulfil corporate social responsibilities may involve their own risks and even result in D&O claims. By the same token, failing to take action could result in claims as well. These trends have important implications for insurers and for policyholders alike. Eric is a Partner and Jennifer is Of Counsel in the Chicago office of Kennedys. I would like to thank Eric and Jennifer for allowing me to publish their 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 Eric’s and Jennifer’s article. Continue Reading Guest Post: Potential D&O Risks Arising from Corporate Social Responsibility

In the course of my various foreign travels, I have had occasion to speak to many underwriters and brokers who place D&O insurance for non-U.S. companies whose American Depository Receipts (ADRs) trade in the U.S. There is a pervasive, inexplicable, and mistaken belief among some underwriters and brokers that companies whose Level I ADRs trade in the U.S cannot be subject to a U.S. securities suit. These individuals persist in this error despite the Toshiba case, in which the Ninth Circuit reversed a district court’s dismissal of the securities suit brought by investors in Toshiba’s unsponsored Level I ADRs. Because of the persistence of the error about the potential liability of companies with ADRs trading in the U.S., it is mandatory for every single underwriter or broker who places D&O insurance for a non-U.S. ADR company to read the latest court ruling in the Toshiba case. As discussed below, the U.S. securities lawsuit brought against Toshiba brought by purchasers of the company’s unsponsored Level I ADRs is going forward.  Continue Reading U.S. Securities Suit of Toshiba’s Unsponsored ADR Investors to Proceed – Including Even Their Japanese Law Claims

Before the ice age, before the flood, before some of the people reading this were even born, the big D&O insurance coverage issue was allocation – that is, the division of loss between covered and non-covered claims or between covered and non-covered parties. After a flurry of judicial decisions in the mid-‘90s, after the addition of entity coverage to the standard D&O insurance policy (also in the mid-‘90s), and after policy allocation language became more or less standardized, litigated allocation disputes became much less frequent. Indeed, the last time I had occasion to write about an allocation coverage decision on this blog was in 2007. (Although, to be sure, allocation is still very much an issue in many D&O insurance claims.) It was with some surprise and interest that I read a recent Delaware Superior Court decision in the long-running Dole Foods insurance coverage dispute dealing with the question of allocating the underlying settlements between covered and non-covered amounts. The decision itself contains some surprises, as discussed below. Continue Reading Delaware Court Rules “Larger Settlement Rule” Governs D&O Insurance Allocation

As I have been wrapping up my various year-end activities, including publishing a list of my own top ten 2019 travel pictures, I have also been publishing pictures that readers have submitted of their own 2019 travels. My first installment of readers’ 2019 travel pictures can be found here, and the second installment can be found here. In this post, I am publishing the latest round of readers’ travel pictures, including an interesting assortment of readers’ pictures take in various U.S. National Parks.  Continue Reading Even More Readers’ Travel Pictures