As I have previously noted (for example, here), several of the standard D&O policy exclusions are designed to keep claims in the their proper lanes – that is, to make sure that the D&O policy doesn’t wind up picking up losses more appropriately addressed by another policy in a policyholder’s insurance program. One of these standard exclusions is the bodily injury and property damage exclusion – or, as it is more commonly known, the BI/PD exclusion – which precludes coverage for claims of bodily injury or property damage that are more appropriately addressed by a CGL policy.
A recent federal court decision considered a D&O insurance policy’s BI/PD exclusion in the context of a kind of claim that is becoming increasingly common – a professional athlete’s liability claims for head injuries sustained in competition. In his November 17, 2016 opinion in the case, Eastern District of Louisiana Judge Eldon Fallon concluded that former Arena Football League’s D&O insurance policy’s BI/PD exclusion precluded coverage for Lorenzo Breland’s claims against the league related to head injuries he sustained as a player. However, the specifics of Breland’s claims raise some interesting issues that Judge Fallon’s opinion does not address. These issues in turn raise questions about the exclusion’s appropriate reach. A copy of Judge Fallon’s opinion can be found here. Continue Reading Football Player’s Concussion Claims Test D&O Policy Exclusion
A recent U.K. appellate court sends a strong cautionary note to litigation funders about the need for vigorous and independent pre-litigation due diligence and of the risks that can follow their support of an unmeritorious claim. In a November 2016 Judgment, the U.K. Court of Appeal ruled that the litigation funders that supported a claimant’s unsuccessful claim to oil field production rights are jointly and severally liable for the successful parties’ fees and costs. The Court’s ruling acknowledges litigation funding’s role in the system of civil justice, but the Court’s decision also highlights an expectation that the funders must evaluate the claims they support – and, because they have a substantial stake in a claim’s outcome , must accept the consequences if their evaluation is deficient. The U.K. Court of Appeals’ November 18, 2016 decision in Excalibur Ventures LLC v. Texas Keystone, Inc. et al. can be found 
In an interesting post on his D&O Discourse blog earlier this fall (
When Congress created the SEC Whistleblower program in the Dodd-Frank Act, one of the requirements was that the SEC’s Office of the Whistlblower would provide an annual report to Congress. On November 15, 2016, the SEC released its annual whistleblower report for the 2016 fiscal year (which ended September 30, 2016). The report shows that the agency continues to make substantial awards to whistleblowers, with six of the ten largest awards being made in FY 2016. The report also shows that the volume of whistleblower tips to the agency continues to increase as well. A copy of the agency’s FY 2016 report can be found 
The typical employment practices liability insurance policy will contain an exclusion precluding coverage for loss arising from claims brought under wage and hour laws. The question that arises from time to time is whether a particular claim was in brought under the laws for which coverage is precluded. A recent federal court case in California examined whether the wage and hour exclusion in an employer’s EPL policy precluded coverage for the claimants’ claims alleging the employer had failed to reimburse reasonable business expenses, in violation of a California statutory provision. In a November 14, 2016 decision, Southern District of California Judge Ted Moskowitz, applying California law, held that the policy’s wage and hour exclusion did not preclude coverage for the claimants’ unreimbursed business expenses claims, even though the exclusion did bar coverage for the claimants’ other claims. A copy of Judge Moskowitz’s exclusion can be found 
One of the recurrent governance proposals to remedy corporate excesses has been the idea of clawing back the compensation paid to company officials who presided over corporate scandals. Both the Sarbanes Oxley Act and the Dodd-Frank Act included provisions mandating compensation clawbacks for corporate executives at companies that restate their financial statements. As Columbia Law School Professor John Coffee details in his November 21, 2016 CLS Blue Sky Blog article entitled “Clawbacks in the Age of Trump” (
On October 1, 2014, 
In numerous recent posts, I have noted the global rise of investor collective actions (refer for example 