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.
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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.
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As I noted at the time (here), on December 19, 2018, Delaware Vice Chancellor Later held that under Delaware law, a corporate charter provision specifying that liability actions under Section 11 of the Securities Act of 1934 must be brought in federal court are invalid and ineffective. A copy of Laster’s opinion in Sciabacucchi v. Salzburg (referred to below as the Blue Apron decision) can be found here. In the following guest post, Paul Ferrillo, Robert Horowitz, and Steven Margolin of the Greenberg Traurig law firm take a look at the Blue Apron decision and examine whether or not Congress will act to eliminate concurrent state court jurisdiction for state court claims. The authors also examine the steps companies should take now in light of the possibility of facing litigation in both state and federal court. I would like to thank the authors for their willingness to allow me to publish their article as a guest post. 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 an article. Here is the authors’ article.
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The Gateway of India

The D&O Diary’s Asia Pacific itinerary continued this week with a stop in India’s largest city and financial capital, Mumbai. My primary reason for traveling to Mumbai was to participate in a professional liability insurance program co-sponsored by PLUS and the local Indian professional liability insurance organization, Bima Gyaan. Despite the travel distances involved and the time required, my visit to India was relatively brief. My opportunities to explore Mumbai were limited. I had just enough touring time to be reminded what an amazing place Mumbai is.
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gavelOver the last several days, Doug Greene of the Lane Powell law firm has been running a series of articles on his D&O Discourse blog asking the question “Who is Winning the Class Action War?” In the aggregate, the multi-part series provides an interesting commentary on the current state of securities class action litigation in the United States. The articles in the series are thought-provoking and provocative — apparently deliberately so — and I commend them to readers for the perspective they provide on the current state of play in securities litigation, from the outlook of an experienced defense-side securities class action litigator.

Based on my own varied experiences, I have my own perspective on some of the topics Greene discusses in his articles, which I have set out below. I want to emphasize at the outset that I am neither entirely disagreeing with nor entirely agreeing with Greene’s analysis and conclusions. I offer my thoughts here for whatever they may be worth, as part of the dialogue that Greene’s articles undoubtedly will provoke.
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deskbookThose of us involved in the world of D&O liability insurance are well aware that the coverage issues often are technical and the relevant legal principles can change quickly as a result of evolving case law. It would be valuable for  practitioners in this area to have access to a reliable resource where the key principles are described and where the key case law authority can quickly be located. Fortunately, there is such a resource. It is the “Directors & Officers Liability Deskbook” (about which refer here), an American Bar Association publication written and edited by attorneys from the Sedgwick law firm. The book’s recently published Fourth Edition is a timely update. Every D&O liability insurance practitioner and indeed anyone looking for a quick and ready resource on D&O liability insurance coverage issuers will welcome this updated edition.
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third editionIn an increasingly global economy, questions arising from cross-border activities are an increasingly common part of day-to-day business activities. Among other things, these circumstances mean that companies frequently must contend with the legal requirements in multiple jurisdictions and deal with the associated legal exposures as well. The potential liability issues in turn raise sometimes difficult questions about indemnification and insurance. For those of us in the insurance industry, these cross-border liability, indemnification, and insurance issues can be challenging.
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rehana box
Rehana Box
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Marie Vlassis

As I have noted in several posts on this site (most recently here), one of the recurring D&O insurance coverage questions is the extent of the preclusive effect of the professional services exclusion. In the following guest post, Rehana Box and Marie Vlassis of the Ashurst law firm take a look at judicial developments in Australia regarding this issue. This article previously appeared in the LexisNexis Australian Insurance Law Bulletin. I would like to thank Rehanna and Marie for their willingness 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 on this site. Here is Rehana and Marie’s guest post.
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Peter Webster

As I have frequently noted on this blog, most recently here, the question of whether or not the Insured vs. Insured applies to preclude coverage is a frequently recurring D&O insurance coverage issue. In the following guest post, Peter Webster of the Carlton Fields law firm takes a look at a recent Florida intermediate appellate court decision interpreting and applying a D&O insurance policy’s Insured vs. Insured exclusion. Peter and his Carlton Fields colleague Patricia Thompson represented the insurer in the proceeding. I would like to thank Peter for his willingness 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 site’s readers. Please contact me directly if you would like to submit a guest post. Here is Peter’s guest post.
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