Articles Posted in D&O

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video-game-retro-1398289137-300x150In the last few years, the video game industry has been hit with lawsuits accusing certain games of fostering addictive behaviors, especially among younger players. These lawsuits often cite features like loot boxes, microtransactions, and reward systems, which are designed to enhance player engagement, as in-game mechanisms that push players toward compulsive play and psychological harm. Plaintiffs claim that game developers either knew or should have known about these potential risks and failed to mitigate them.

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A recent decision by a California appellate court in Practice Fusion, Inc. v. Freedom Specialty Insurance Company, denying the policyholder more than $118 million in Directors & Officers liability coverage based on an expansive professional services exclusion, is a sobering reminder that this nettlesome exclusion—when over-broadly applied, as was the case here—may render your D&O coverage worthless. The mere fact that Practice Fusion’s insurers asserted this exclusion in the circumstances of this claim should remind brokers and risk managers of the importance of eliminating, or at least narrowing, professional services exclusions where there is any potential argument that the insured is engaged in providing any form of “professional services.” Although it is of course appropriate to fill any gaps created by the exclusion with commensurate Errors & Omissions coverage, E&O policies do not provide the same scope of coverage, or even limits, that are available under D&O policies.

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GettyImages-1410816038-e1717616912796-293x300When is a claim “brought” against an insured?

A Delaware bankruptcy court’s answer to this seemingly innocuous question turned into a nightmare for the estate of a bankrupt insured. The insured was deprived of coverage under a claims-made D&O policy for a claim filed three years after the retroactive date of the policy, on the basis that the claim arose from the same facts as an earlier False Claims Act suit that was filed before the policy’s retroactive date but never served upon the insured.

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GettyImages-1302089727-300x200In recent months, the United States-Mexico border has seen an unprecedented surge of migrants. With this wave, various state and local authorities across the nation have expressed a strain on their public resources and housing capacities. To relieve overwhelmed border towns, Texas Governor Abbott initiated a migrant relocation plan to bus migrants to certain “sanctuary cities” like New York, Washington, D.C., Chicago, Philadelphia, Denver and Los Angeles.

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In recent years, corporate directors and executives have faced challenges from conservative groups opposed to corporate diversity, equity and inclusion initiatives, with some efforts taking the form of shareholder litigation.

The U.S. Supreme Court’s recent decision overturning the use of affirmative action in university admissions provides new ammunition for these claims and is likely to embolden potential claimants.

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Bump-up-exclusion-533045396-300x200Long a feature of directors’ and officers’ (D&O) liability insurance policies, the so-called “Bump-Up” Exclusion has gotten significant attention over the last few years. Because of the recent escalation in securities litigation that follows a majority of mergers and acquisitions, the Bump-Up Exclusion is of critical importance to publicly traded policyholders. Bump-Up Exclusion provisions are often found in a D&O policy’s definition of “Loss” and purport to exclude the amount of a settlement or judgment that represents an increase in the price paid to acquire an entity, where such consideration was alleged to be inadequate. A recent decision out of the Delaware state courts affirms again that D&O insurers will be held to the specific terms of their Bump-Up Exclusions.

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GettyImages-187833844-1-300x193The collapse of Silicon Valley Bank (SVB), the failure of Signature Bank, the close-call of First Republic, and the bailout of Credit Suisse had many proclaiming earlier this year that banking was heading toward an industry-wide disaster. The chair of the FDIC reported in March of this year that American financial institutions incurred a total of $620 billion in unrealized mark-to-market losses. The stock markets certainly reflected those figures. The Nasdaq index for bank stocks dropped by a quarter within a week after SVB’s failure was announced. Gains accumulated over the past quarter century evaporated in just a few days, with U.S. regional lenders bearing the brunt of the impact. While last month saw the banking sector make a modest rebound, the sector gauge remains down by 20% so far this year.

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GettyImages-1307180215-300x200In 2020 and 2021, Special Purpose Acquisition Companies (SPACs) were all the rage. A SPAC is a “blank check company,” publicly traded, and organized for the purpose of merging with a private company. It’s a mechanism for a private operating company to go public without doing its own IPO. Though SPACs have existed for decades, their use skyrocketed in the last couple years. While insurers, brokers and attorneys have developed a level of expertise on risks and insurance coverage in connection with SPAC formation and completed de-SPAC transactions, the insurance implications of failed SPACs was not addressed in 2020 and 2021 and is still not fully understood or appreciated.

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NY-Cal-flags-278x300Four months ago, New York Governor Kathy Hochul signed the Adult Survivors Act (ASA) (S.66A/A.648A), creating a one-year window, beginning November 24, 2022, for adult survivors of sexual assault to bring civil claims against their alleged attackers which otherwise would have been time barred. On September 19, 2022, California Governor Gavin Newsom signed an equivalent law, the Sexual Abuse and Cover Up Accountability Act (AB-2777), which similarly suspends the statute of limitations for civil claims of sexual assault and other vicarious offenses arising out of that conduct starting January 1, 2023. These laws will likely generate a surge of litigation in California and New York, undoubtedly impacting many businesses operating there. Many, if not most, of those companies will look to insurers to furnish legal defenses and to financially support settlements or damage awards based on past policies.

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GettyImages-1096499208-e1663267129510-300x192As the preferred place of incorporation for most U.S. companies, Delaware has long been a leader in the development of statutory and common law on corporate governance. In keeping with this role, the Delaware legislature recently amended its corporate code to permit enhanced legal exculpation of officers of Delaware corporations. Let’s look at this amendment and its implications for D&O insurance.

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