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For the second time in recent days, a court has held that a D&O insurance policy provision operates to preclude coverage for claims against an insured company and its executives that the consideration to be paid for the acquisition of the insured company is inadequate. The Seventh Circuit in a recent decision held that the “inadequate consideration” exclusion (sometimes referred to as the “bump-up” exclusion) in the applicable D&O insurance precludes coverage for a claim that disclosure in the company’s proxy statement omitted information that could have been used to negotiate a higher price. As discussed below, the policy wording at issue was relevant to the outcome. The Seventh Circuit’s January 23, 2023, opinion in the Komatsu Mining Corp. case can be found here.Continue Reading “Inadequate Consideration” Exclusion Precludes Coverage for Underpayment of Insured Company’s Acquisition

I have long believed and said that the typical professional liability and D&O liability insurance policy contractual exclusion written with the broad “based upon, arising out” preamble sweeps too broadly and precludes coverage for the very kind of claims for which policyholders buy the insurance. The Seventh Circuit has now said what I have long been saying; the appellate court found that the contractual liability exclusion in an E&O insurance policy renders coverage under the policy “illusory” and therefore the policy must be reformed to match the policyholder’s “reasonable expectations.” I hope everyone involved in the professional liability and D&O liability insurance industry will take the time to familiarize themselves with this recent decision. I also hope this decision means the end of contractual liability exclusions using the broad “based upon, arising out of” preamble.
Continue Reading 7th Circ.: Contract Exclusion Renders Coverage “Illusory”

As the use of third-party litigation funding has become more widespread, one issue that has been debated is whether or not the existence and details of a funding arrangement must be disclosed to the adversarial parties. As I have noted in prior posts, courts have struggled with the question of whether or not funding arrangements must be disclosed under existing discovery rules. A number of proposals providing for mandatory disclosure of litigation funding arrangements have been proposed. Now, Wisconsin has become the first state to adopt a provision requiring the disclosure of litigation funding arrangements. The state’s action is just the latest step in what seems to be a general move toward requiring disclosure.
Continue Reading Wisconsin Become First State to Mandate Disclosure of Litigation Funding Arrangements

wisconsinAs I have noted in prior posts (most recently here), a recurring D&O insurance coverage issue is the question of whether or not an insured person was acting in an insured capacity at the time he or she allegedly committed the wrongful acts alleged against him or her. These questions arise because individuals often act in numerous capacities, but the D&O policy provides coverage only for those acts undertaken as a director or officer of the insured company.

A recent case involved similar questions arising under a professional liability insurance policy that provided coverage for the insured individual’s acts in his capacity as the trustee of two trusts. The individual sought coverage under the policy for claims brought against him in his capacity as a director or officer of separate companies in which the trusts held controlling ownership interests. In a June 30, 2016 opinion (here), the Wisconsin Supreme Court, applying Wisconsin law,  affirmed the intermediate appellate court’s holding that under the policy’s business enterprise exclusion, which precluded coverage for claims arising from the individual’s actions for entities other than the specified trusts, there was no coverage under the policy and the insurer had not breached its duty to defend.
Continue Reading Trustee’s Professional Liability Insurance: No Coverage for Claims Against Trustee Acting as Director of Separate Corporation