As part of a continuing series, I have been participating in sessions that the Professional Liability Underwriting Society (PLUS) has organized addressing the potential D&O liability and insurance issues arising out of the COVID-19 outbreak. I have been joined in these recorded sessions by my good friends Carl Metzger of the Goodwin Procter law firm

Priya Cherian Huskins

Many readers undoubtedly have heard that, in lieu of D&O insurance, Tesla Motors CEO Elon Musk has personally agreed to protect the company’s board with an indemnification undertaking. In the following guest post, Priya Cherian Huskins discusses another situation in which a company official has agreed to indemnify the company’s directors in lieu of insurance, and discusses the issues and implications of this type of arrangement. Priya is a Senior Vice President and Partner at Woodruff Sawyer. A version of this article previously appeared in the D&O Notebook. I would like to thank Priya for allowing me to publish her 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 Priya’s article.
Continue Reading Guest Post: When a Wealthy Individual, Not D&O Insurance, Indemnifies Directors

As part of a continuing series, I have been participating in sessions that the Professional Liability Underwriting Society (PLUS) has organized addressing the potential D&O liability and insurance issues arising out of the COVID-19 outbreak. I have been joined in these recorded sessions by my good friends Carl Metzger of the Goodwin Procter law firm

One of the features of the Coronavirus Aid, Relief and Economic Security Act (CARES Act) is the Paycheck Protection Program (PPP), which is intended to make governmental funds available in the form forgivable loans so that small businesses can keep employees on their payroll. The CARES Act was passed in a rush and the PPP funds were dispersed in a hurry, so it is hardly a surprise that some problems might emerge. The U.S. Department of Justice has already said that as a result of a preliminary inquiry, the agency has already found possible fraud among the businesses seeking PPP funds. As discussed below, the possibility of further PPP investigative, regulatory, and enforcement actions raises a number of questions.
Continue Reading Next Up: PPP Investigations, Enforcement Actions, and Criminal Proceedings?

Francis Kean

In the following guest post, Francis Kean takes a look at the potential impact on COVID 19-related claims of standard D&O insurance policy exclusions. Francis is a Partner, Financial Lines, at McGill and Partners. A version of this article previously was published as a McGill client alert. I would like to thank Francis for allowing me to publish his 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 submit a guest post. Here is Francis’s article.


Continue Reading Guest Post: Beware the Unexpected Consequences of “Standard” D&O Exclusions

Francis Kean

As the coronavirus outbreak has unfolded , one of the steps that insurers have been taking in response is to try to add coronavirus or pandemic exclusions to policyholders’ go-forward policies, in some instances included with respect to D&O insurance. In the following guest post, Francis Kean takes a look at an example of this type of exclusion. Francis is a Partner, Financial Lines, at McGill and Partners. A version of this article previously was published as part of a McGill client alert. I would like to thank Francis for allowing me to publish his 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 submit a guest post. Here is Francis’s article.
Continue Reading Guest Post: The Dangers of COVID-19 Exclusions in D&O Policies

For many years, U.S.-listed companies based outside the U.S. have enjoyed a relatively advantageous pricing environment for their D&O insurance. Because many D&O insurance underwriters based outside the U.S. used a different pricing model than their U.S. counterparts, pricing for these foreign filers was in many instances lower than the pricing available to equivalent U.S.-based companies. In recent months, however, as a result of surging claims frequency and loss costs, foreign filers’ D&O insurance costs have jumped significantly. These developments and the claims-related factors causing the changes are detailed in an interesting March 20, 2019 article by Jane Njavro of Woodruff Sawyer entitled “Why D&O Costs Are Soaring for Foreign Filers” (here). The article includes detailed statistical analysis of the relevant U.S. securities class action litigation trends.
Continue Reading The Deteriorating D&O Insurance Environment for Foreign U.S.-Listed Companies

Stanford Law School

On Tuesday, March 5, 2019, it was my distinct honor and pleasure to be one of the invited speakers at Professor Joseph Grundfest’s corporate and securities litigation class at Stanford Law School in Palo Alto, California. Along with Priya Cherian Huskins of the Woodruff Sawyer firm, I was invited to address the students on the topic of the role of D&O insurance in securities and derivative litigation.
Continue Reading Corporate and Securities Litigation at Stanford Law School