Judge Paul Wallace of the Delaware Superior Court has held that a bump-up provision did not operate to preclude coverage for a settlement of a Section 14(a) cause of action.  Northrop Grumman Innovation Sys., Inc. v. Zurich Am. Ins. Co., 2021 WL 347015 (Del. Super. Ct. Feb. 2, 2021).  The court also held that a prior acts exclusion contained in a different set of D&O policies did not preclude coverage for Section 10(b) claims asserted in the same lawsuit.

Continue Reading Coverage for Stockholder Suits Not Barred By Prior Acts Exclusion or Bump-Up Provision

Applying Oklahoma law, the United States District Court for the Western District of Oklahoma has held that no coverage is available for a lawsuit involving an equity holder in an investment agreement because the action did not involve a “Wrongful Act” in an individual’s capacity as “an Insured Person.”  Turner v. XL Specialty Ins. Co., 2020 WL 3547954 (W.D. Okla. June 10, 2020).  The court further held that the insured did not satisfy his burden of proving that his legal costs were “Defense Expenses” even though he was nominally a “defendant” in the suit.

Continue Reading No Coverage for Affirmative Lawsuit Challenging Distribution of Proceeds From Sale of Investment Assets

A Massachusetts intermediate appellate court has held that a D&O insurer was required to defend a suit that at least arguably made allegations against an insured in his capacity as such.  Fodera v. Arbella Prot. Ins. Co., 2018 WL 632125 (Mass. Dist. Ct. Jan. 25, 2018).

Continue Reading D&O Insurer Has Duty to Defend Where Allegations Arguably Implicate Insured Capacity