Tag Archives: D&O

Navigating the “Bump-Up” exclusion in 2023: Rules for the road

By Carolyn Rosenberg, Andy Moss and Jessica E. Gopiao on Posted in D&O, E&O, Professional Liability, Insurance Coverage, Insurance General, Insurance News of Note
M&A activity is making a comeback in 2023, according to Bloomberg Law (“M&A Roars Back in $40 Billion Surge Led by Miners, Storage” A. Kirchfeld and D. Nair, Feb. 6, 2023). The rise in transactions—and the likelihood of claims involving them—will no doubt lead to continued D&O insurance coverage disputes over the “bump up” exclusion. Policyholders … Continue Reading

Key considerations for companies in procuring or renewing D&O coverage

By Miranda Jannuzzi and Andy Moss on Posted in D&O, E&O, Professional Liability, Insurance Coverage, Insurance General
Directors’ and Officers’ liability (“D&O”) insurance offers key protections to a company’s board members and management by serving as a financial backstop for their indemnification rights as well as their personal assets in the event directors or officers are the subject of claims or investigations based on their service to the company.  D&O insurance also … Continue Reading

You’ve been sued: An insurance attorney’s top tips for securing (and preserving) coverage

By Maisie McDonald and John Vishneski on Posted in D&O, E&O, Professional Liability, Insurance Coverage, Insurance General
Do not assume insurance coverage is unavailable   Today’s insurance market is complex.  It encompasses a wide range of insurance policies covering all manner of events and circumstances.  Beyond more traditional coverage for personal injury or property damage (under commercial general liability (CGL) policies), companies now routinely purchase Directors & Officers (D&O) policies, Errors & Omissions … Continue Reading

Guaranteed Rate v. Ace American Insurance – a victory for policyholders seeking coverage for government investigations

By Zachary S. Roman and Dominic Rupprecht on Posted in D&O, E&O, Professional Liability, Financial Insurance Coverage, Government investigations, Insurance Coverage, Insurance General
Government investigations by SEC, DOJ, and state attorney generals are a significant source of exposure for companies and their directors and officers. Companies can spend millions of dollars responding to a government subpoena or investigative demand. The broadly worded demands for information or testimony typically require extensive searches through mountains of paper documents and electronically … Continue Reading

D&O insurance to counter ESG litigation – new issues for insurers and policyholders

By Kya Coletta and Benjamin Fliegel on Posted in D&O, E&O, Professional Liability, Environmental, Insurance Coverage, Insurance General
Strong environmental, social and corporate governance (ESG) business policies are critical to address the fluctuating, unprecedented risks in this changing climate. Any company planning to expand and thrive in the next few decades must evaluate its collective conscientiousness for social and environmental factors, including preparing for the social and market upheavals resulting from greenhouse gas … Continue Reading

D&O insurance for the cannabis industry

By Jake Ziering and Marc Hauser on Posted in Cannabis, D&O, E&O, Professional Liability, Insurance Coverage, Insurance General
Cannabis and the D&O market in 2022 In the early days of 2022, cannabis companies and investors have cause for guarded optimism. The once very real specter of federal intervention in the burgeoning industry seems to have faded into the background as successive presidential administrations have declined to push the issue, and now, all but … Continue Reading

Year in review: Reed Smith’s Insurance Recovery team highlights top insurance topics of 2021

By Jalen Brown and Ashley Jordan on Posted in Cyberliability, D&O, E&O, Professional Liability, Insurance Coverage
At Reed Smith, we pride ourselves on forming true partnerships with our clients to find creative and unexpected solutions to the most challenging insurance coverage issues. As part of this commitment, we have authored a column for Thomson Reuters to provide advice, strategies, and information on the full range of insurance coverage issues affecting commercial … Continue Reading

End to long-running dispute over uninsurability under D&O insurance

By Christopher Kuleba and Matthew B. Weaver on Posted in D&O, E&O, Professional Liability, Financial Insurance Coverage, Insurance Coverage
Putting an end to a 12-year-old dispute between J.P. Morgan Securities’ predecessor, Bear Stearns & Co., and several of its insurers, on November 23, 2021, New York’s high court held that J.P. Morgan’s $140 million payment to the Securities and Exchange Commission (SEC) did not constitute an uninsurable “penalty” under J.P. Morgan’s excess directors & … Continue Reading

D&O insurance basics (Part 2)

By Andy Moss and Carolyn Rosenberg on Posted in Commercial General Liability, D&O, E&O, Professional Liability, Insurance Coverage, Insurance General
Directors’ and officers’ liability (D&O) insurance protects the personal assets of corporate directors and officers in the event of a lawsuit or other “claim” made against them for, among other things, an alleged breach of their duties in managing the organization.  D&O insurance directly covers individual directors and officers for their defense costs, judgments against … Continue Reading

D&O insurance basics (Part 1)

By Carolyn Rosenberg and Andy Moss on Posted in D&O, E&O, Professional Liability, Insurance Coverage, Insurance General, Uncategorized
This is the first of two posts discussing several major aspects of directors’ and officers’ liability (“D&O”) insurance coverage.  Companies approaching a policy renewal deadline, looking to place D&O insurance for the first time, considering increasing the size or structure of an existing D&O insurance program, or otherwise evaluating their overall risk management strategy may … Continue Reading

Join us for an on-demand webinar “What policyholders really need to know about insurance for COVID-19”

By Elizabeth F. Vieyra on Posted in Commercial General Liability, D&O, E&O, Professional Liability, Insurance Coverage, Insurance General, Property Damage & Business Interruption, Uncategorized
Reed Smith Insurance Recovery partners John Shugrue, John Ellison, Amber Finch, Richard Lewis, and Matthew Weaver offer discussion and analysis on key issues relevant to businesses seeking, or evaluating whether to seek, coverage for COVID-19 losses. This webinar is available on demand and you can register here. Here’s a brief summary of the topics addressed in … Continue Reading

Pursuing Insurance Coverage for Alleged Mislabeling of Dietary and Herbal Supplement Products

By Evan Knott, Robert Deegan, Brian Himmel and Traci Rea on Posted in Commercial General Liability, Insurance Coverage, Insurance General
Businesses in the dietary supplement supply chain are taking cover after the New York Attorney General (NYAG) ordered four major retailers to cease and desist the sale and alleged mislabeling of certain herbal supplements. After genetically testing store-brand product samples of Ginko Biloba, St. John's Wort, Ginseng, Garlic, Echinacea, and Saw Palmetto, the NYAG alleged that the supplements were unrecognizable or contained substances other than those disclosed on their packaging labels. Class action lawsuits already have been filed, and the NYAG directed the targeted retailers to provide it with detailed information regarding the manufacturing, testing, and procurement of the herbal supplements, and announced that it may bring charges for alleged deceptive practices in advertising.… Continue Reading

Lessons Learned: Report All Potential D&O Liability Insurance Claims Without Delay

By Courtney Horrigan on Posted in D&O, E&O, Professional Liability
The District Court of Massachusetts' January 6, 2015 opinion in Biochemics, Inc. v. Axis Reinsurance Co., 2015 WL 71493 (D. Mass. Jan. 6, 2015), reaffirms the importance of providing timely notice of all D&O liability claims - including subpoenas. In Biochemics, the policyholder sought coverage from its primary D&O liability insurer, Axis, for defense costs it incurred in an SEC enforcement action commenced during the AXIS policy period. Judge Rya Zobel held that Biochemics had no coverage for the SEC enforcement action because it related back to two deposition subpoenas that the SEC served on Biochemics before the AXIS policy incepted. Because those deposition subpoenas indicated on their face that the SEC had commenced a formal investigation against Biochemics, each subpoena was a "Claim" that should have been reported to Biochemics' prior D&O carrier. Because the Claim was "first made" before the AXIS policy period, Judge Zobel granted AXIS' motion for summary judgment and found that AXIS owed Biochemics no coverage under its policy.… Continue Reading

On the Coattails of United States v. Trek Leather, Make Sure You Have Suitable D&O Coverage

By Andy Moss and Stephen Winter on Posted in D&O, E&O, Professional Liability, Insurance Coverage, Insurance News of Note
Corporate directors and officers have a long list of things that can keep them up at night. Personal liability for civil fines and penalties arising out of negligence or even gross negligence committed in the course of their service to the company should not be one of them. But recently, in United States v. Trek Leather, Inc., 767 F.3d 1288 (Fed. Cir. 2014) (en banc), a federal appeals court held that the government could hold a corporate officer liable for a civil penalty based on gross negligence committed by the officer or his or her agents acting in the scope of their duties to the company, and without the government establishing fraudulent intent or attempting to pierce the corporate veil.… Continue Reading

Hackers Don’t Care About Your Insurance

By Brian Himmel on Posted in Cyberliability, Insurance Coverage, Insurance General
A recent study reports that the median amount of time between a breach of a company's computer network and the discovery of the incident is 229 days. But some cyberliability policy forms require that both the breach event and discovery of loss (or resulting claim) occur during the policy period. So what happens when a breach is discovered three months into the policy period but, unbeknownst at the time, the intrusion actually occurred six months before, or even earlier? If your company's cyberliability insurance policy excludes breach events occurring before the inception of the policy period, the company could find itself without coverage for an otherwise-covered claim or loss.… Continue Reading

Catch Me If You Can: Fake Doctor’s Application Voids Coverage For Himself But Not For Innocent Co-Insureds

By Kevin Dreher and Natalie Metropulos on Posted in D&O, E&O, Professional Liability
In life, sometimes even the law imitates art. As if copied straight out of the script of "Catch Me If You Can," the U.S. District Court in South Carolina issued a ruling on October 21, 2014 in which it held that despite a false application for professional liability insurance submitted by an applicant pretending to be a doctor, the insurance afforded to the company and other doctors and nurses identified as named insureds under the policy remained in force and was not void ab initio as to the innocent co-insureds.… Continue Reading

Insurance Coverage Legal Audits are Not a Luxury

By Doug Widin on Posted in Insurance General
This post was written for Boardmember.com Most executives view insurance with disdain, because it makes no immediate contribution to production, research and development or marketing. Ordinarily, insurance has no tangible results and does not improve the balance sheet. It does not increase stock value. Generally, insurance represents a pure expense detracting from the bottom line. Few … Continue Reading

When will the chickens come home to roost? Insurers Use Reserve Releases to Buff Up Underwhelming Financials

By Ann Kramer on Posted in Insurance News of Note
Releasing reserves based on early developments is an optimist’s view, [Evan Greenberg, chairman and chief executive officer of ACE Limited] said. “Good news comes early in the casualty business. The bad news always comes late,” he said. “I do think some companies have released reserves early in an effort to goose earnings,” he said. “It … Continue Reading
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