The D&O Diary was on the road again this week, albeit this time for domestic travels only. The main event this week was a stop in Nashville to attend Arch Insurance’s Executive Assurance Division’s 2024 Offsite Meeting. At least by contrast to some of my recent international travel, this was a quick trip; because it was such a quick trip, I didn’t get a chance to see much of Nashville itself, but the trip was still a lot of fun.Continue Reading Nashville

Sam Vardy
Carey Lynn

One of the most important director and officer litigation risks is the possibility of a shareholder derivative lawsuit. In the following guest post Sam Vardy and Carey Lynn take an overview of derivative suits and discuss some of the important D&O coverage issues the cases present. Sam is a lawyer and Divisional Director, and Carey is a lawyer and Managing Director, in the Financial Lines division of Howden.  A version of this article was published previously on the Howden website. I would like to thank Sam and Carey 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 site’s readers. Please contact me directly if you would like to submit a guest post. Here is Sam and Carey’s article.Continue Reading Guest Post: The Risks of Shareholder Derivative Suits and D&O Coverage

One of the perennial issues involving D&O insurance coverage in the bankruptcy context is the question whether the directors and officers of the corporate debtor can tap the insurance policy to pay their defense expenses in connection with claims filed against them in their capacities as executives of the corporate entity. These issues have arisen once again in the bankruptcy proceedings of the corporate parent of Silicon Valley Bank, SVB Financial Group, where the bank’s directors and officers found themselves compelled to petition the bankruptcy court to lift the stay in bankruptcy in order for the bank’s insurers to pay the individuals’ defense expenses.

While there is nothing novel about the bankruptcy court’s order granting the stay, both the high-profile nature of the proceedings and the critical importance of the issues involved warrant taking a closer look at what unfolded in that case. A copy of the bankruptcy court’s May 22, 2023, order in the case can be found here. An August 23, 2023, memo from the Foley Hoag law firm about the court’s decision can be found here.Continue Reading SVB Bankruptcy Court Lifts Stay to Allow Insurance to Pay Individuals’ Defense Expenses

Greg Markel
Sarah Fedner

In the following guest post, Greg Markel and Sarah Fedner take a look at the characteristics of securities class action lawsuits that made securities suit mediations different from mediations in other types of litigated matters, as well as the practical implications of those differences. Markel is Securities Litigation co-Chair and Partner at Seyfarth Shaw LLP and Fedner is a Senior Managing Associate at Seyfarth Shaw LLP. A version of this article previously was published in the New York Law Journal. I would like to thank Greg and Sarah 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 Greg and Sarah’s article.Continue Reading Guest Post: Why are Securities Class Action Mediations Different from Other Mediations?

Joel Bruckman

Sarah Abrams

As I have noted in prior post on this site (most recently here), the prospect of out-sized liabilities under the Illinois Biometric Information Privacy Act (BIPA) is a significant concern for companies and for their insurers alike. As discussed in the following guest post from Joel Bruckman, Partner, Freeborn & Peters, LLP, and Sarah Abrams, Head of Professional Liability Claims, Bowhead Specialty Underwriters, recent BIPA-related developments further underscore these concerns and raise important insurance issues as well. I would like to thank Joel and Sarah 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 Joel and Sarah’s article.
Continue Reading Guest Post: Runaway BIPA Recoveries Impact Company Liability and Cyber Insurance

Sarah Abrams

In the following guest post, Sarah Abrams, Head of Professional Liability Claims at Bowhead Specialty Underwriters, takes a look at the implications for D&O insurers of the growing investment interest of private equity firms in the healthcare sector. I would like to thank Sarah 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 Sarah’s article.
Continue Reading Guest Post: As Private Equity Healthcare Investments Grow, Will D&O Liability Exposure Increase?

The directors’ and officers’ liability environment is always changing, but 2021 was a particularly eventful year, with important consequences for the D&O insurance marketplace. The past year’s many developments also have significant implications for what may lie ahead in 2022 – and possibly for years to come.  I have set out below the Top Ten D&O Stories of 2021, with a focus on the future implications. Please note that on Thursday, January 13, 2022 at 11:00 AM EST, my colleague Marissa Streckfus and I will be conducting a free, hour-long webinar in which we will discuss The Top Ten D&O Stories of 2021. Registration for the webinar can be found here. I hope you will please join us for the webinar.
Continue Reading The Top Ten D&O Stories of 2021

Companies in the pharmaceutical industry are frequent targets of securities class action lawsuits. In the following guest post, Tony Kriesel, Claims Specialist with IQUW; Elan Kandel, a Member of the Bailey Cavalieri law firm; and James Talbert, an Associate at Bailey Cavalieri, take a look at the reasons for the pharmaceutical industry’s high securities litigation frequency experience and at the implications of the lawsuit frequency for pharmaceutical companies and their insurers. They also consider the significance of the interrelated claims provision typically found in D&O insurance policies for securities claims involving pharmaceutical companies. I would like to thank the authors 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: D&O Risks and Challenges for Pharmaceutical Companies and their Insurers

Peter Selvin

In an October 19, 2021 decision in Twin City Fire Insurance Co. v. Vonachen Services, Inc., the Northern District of Illinois, applying Illinois law, addressed key insurance coverage issues under the D&O and EPL coverage parts of a management liability insurance policy. In the following guest post, Peter Selvin reviews and analyzes the decision. Selvin is a partner with Los Angeles-based Ervin Cohen & Jessup. A version of this article previously was published in the LA Daily Journal. I would like to thank Peter for allowing me to publish his article on my 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: Court Addresses Biometric Claims and Insurance Issues

As everyone involved in D&O insurance claims knows, there are a number of frequently recurring coverage issues. But while many coverage issues often recur, the applicable legal principles continue to develop and change. There are resources (such as, for example, this blog) where important developments can be tracked, but sometimes what is called for is a single resource that collects the relevant developments in a single place. Fortunately for D&O insurance practitioners, there is resource that does just that. It is the “Directors & Officers Liability Insurance Deskbook” (about which refer here), an American Bar Association publication written by attorneys from the Clyde & Co. law firm and edited by Martin J. O’Leary of Clyde & Co. The book’s recently published Fifth 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 issues will welcome this updated edition.
Continue Reading Book Review: Directors & Officers Liability Insurance Deskbook (Fifth Edition)