The drama surrounding former crypto mogul Samuel Bankman-Fried’s criminal prosecution and conviction has dominated the business pages for weeks. In addition, and as the news reports noted at the time, just before the criminal trial began, SBF sued one of FTX’s excess D&O insurers, alleging the insurer was refusing to pay his legal bills. Earlier this week, it emerged that SBF has withdrawn his insurance coverage lawsuit. But while the coverage lawsuit apparently now will not go forward, the interesting questions the situation presented are still worth asking. And the short-lived coverage litigation also unearthed some interesting stuff, as discussed below. Daphne Zhang’s November 7, 2023, Bloomberg article about the coverage litigation, which contains a comprehensive overview of the coverage dispute, can be found here.Continue Reading FTX Legal Drama Includes D&O Coverage Fight (Now Withdrawn, but Not Forgotten)

Francis Kean

Noona Barlow

On this site, I try to keep my readers up to date on the latest developments in the world of directors’ and officers’ liability and insurance. Every now and then, it is worth taking a step back and asking the basic questions, such as, what should directors know about their D&O insurance? The following guest post, written by Francis Kean and Noona Barlow, Partners in the Financial Lines team at McGill and Partners, in conjunction with Airmic, answer some of the basic questions. This Guide was originally published by Airmic to coincide with its 2021 annual conference and is available on its website. The article’s authors are based in the UK and so the article is written from a UK perspective, but many of the article’s insights are largely applicable in the US as well. I would like to thank the authors and Airmic for allowing me to publish this 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: Boardroom Guide to D&O Insurance

D&O insurance policyholders sometimes bridle when the insurers take steps to try to rein in burgeoning defense expense. In that situation, the D&O insurers will often try to remind the policyholder that because defense expense erodes the limit of liability, it is in everyone’s interest for defense expense to be monitored closely. An unusual coverage action in the Western District of New York reversed the usual concerns about insurer defense cost control. The policyholder sued its D&O insurer for breach of contract, bad faith, and intentional infliction of emotional distress not for failing to pay defense costs or full defense costs, but rather for allowing the policyholder’s defense expenses incurred in an underlying criminal action to exhaust the applicable limit of liability. While it is hardly a surprise that a court concluded that an insurer that paid out its full limits cannot be held liable for breach of contract – much less bad faith or infliction of emotional distress –there are still a number of interesting aspects to this dispute and to the court’s ruling.  
Continue Reading News Flash: Insurer That Paid Full Policy Limits Did not Breach the Policy or Act in Bad Faith

mississippiMost management liability insurance policies are written on a defense-costs-inside-the-limits basis, meaning that covered defense costs erode the limits of liability as the expenses are incurred. Though this is a well-established arrangement within the industry for this type of insurance, the erosion of limits by defense expenses sometimes comes as an unwelcome surprise to a policyholder, usually in the middle of a serious claim. A recent federal appellate case involved an effort by a community hospital system in Mississippi to try to argue that its expenses incurred in defending an underlying claim did not erode the limits of its management liability insurance policy.

In a March 1, 2017 opinion (here), the Fifth Circuit, applying Mississippi law, rejected the hospital system’s arguments and held that under the terms of the policy, the system’s expenses defending the underlying claim did erode the applicable policy limits. While the Fifth Circuit’s conclusion in that regard arguably is unremarkable, it does provide an opportunity to step back and consider the limits erosion feature of these kinds of policies.
Continue Reading Fifth Circuit Rejects Hospital’s Argument that Defense Expense Does Not Erode the Limits of Liability