It is time for corporate insureds to reevaluate whether they need to add entity coverage to their D&O insurance programs for SEC and other administrative investigations.

The U.S. Court of Appeals for the Tenth Circuit recently affirmed summary judgment in favor of a D&O carrier, finding no coverage under Colorado law for legal fees and expenses associated with a pre-Wells Notice SEC investigation of the insured organization.

In MusclePharm Corp. v. Liberty Ins. Underwriters, Inc., Case No. 16-1462 (10^th Cir. Oct. 17, 2017), the court issued an unpublished decision in which it decided the SEC’s investigation leading up to its issuance of a “Wells Notice” to the plaintiff did not fall under the policy definition of “claim” because it did not allege a “wrongful act” during the policy period.

Amy Stewart Law Associate Marisa L. Jeffrey recently published an article in the Journal of Texas Insurance Law.

“Nuts & Bolts :: Directors & Officers Liability Policies” provides an overview of D&O policies, which provide the executives of a company with protection against liability for “wrongful acts” committed in their corporate capacities and the cost of defending such claims. The article provides a primer on D&O insurance, common policy provisions, and key considerations to guide policy evaluation. 

The Journal is published by the Insurance Law Section of the State Bar of Texas. 

One of the most frustrating events in business is being served with a lawsuit. If your company has prepared for such an event, however, you should have one or more insurance policies in place that will help defray expenses. 

Determining which policies apply can be difficult, as policy language is not always crystal clear. You may be able to activate one or more of the following kinds of coverage:

•      Commercial general liability (CGL)
•      Errors and omissions (E&O), also known as professional liability insurance
•      Directors and officers (D&O)

Running a business is full of risks, which is why one of the first purchases savvy business owners make is insurance. Between the dizzying array of choices and the opaque policy language, however, deciding which policies to buy can be overwhelming.

Choosing coverage that will help protect your company when you need it most can pay off in a big way, so here’s a brief overview of the policies commonly available to businesses.

It’s clear that businesses are aware of the risks posed by cyber breaches, given the growth of the cybersecurity industry and the growing number and variety of insurance products available to help companies recover from cyber attacks. 

Still, there’s plenty of room for growth, according to a recent report titled "The Cybersecurity Risk to Knowledge Assets,” a joint effort of the law firm Kilpatrick Townsend, and Ponemon Institute LLC. The bulk of the 35-page report is devoted to the potential loss of “knowledge assets” (i.e. trade secrets and other confidential information) in a cyber breach, but it also includes some interesting notes for those of us who follow the cyber insurance world. 

According to the report, 60 percent of businesses surveyed either have cyber insurance (29 percent) or plan to get it within the next year (31 percent). 

Please join Amy Elizabeth Stewart along with the rest of the panel for this two-hour webcast on Friday, August 7^th. The course will contain an in-depth discussion of the fundamentals of M&A insurance as well as updates surrounding Insurance needs of D&Os, businesses, and selling stockholders that arise in connection with public and private mergers and acquisitions.

With the entrance of the Ebola virus into the United States this year, we have become acutely aware of public health issues raised by the threat of an outbreak, yet the potential economic impact of this virus and the associated need for proper risk management has not been considered as closely. The economic implications of the Ebola outbreak could be epic—the World Bank Group forecasts the affected countries’ economic loss to reach $32.6 billion by the end of the year.

Next week, Amy Elizabeth Stewart is slated to address attendees at the UT Law CLE Corporate Counsel Institute 2014 on current issues in directors and officers liability insurance. Stewart, along with Kara Altenbaumer-Price of USI Southwest, will present "Top Ten D&O Insurance Mistakes," focusing on common management liability insurance issues faced by corporate insureds. Drawing from, their own experience working with policyholders, Stewart and Altenbaumer-Price will&n ...

Amy Elizabeth Stewart, of Dallas’ Amy Stewart PC, will present “Insurance 101: Fundamentals of Liability Insurance for In-House Counsel” to the Dallas Bar Asociation’s Corporate Counsel Section on Tuesday, Nov. 6 at noon at the Belo Mansion, 2101 Ross Ave. The one-hour presentation provides one hour of MCLE credit. There is no charge for DBA members, although there is a lunch buffet available for purchase. Non-members must pay a fee in order to receive MCLE credit. For more info ...

Since the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 nearly two years ago, corporate policyholders and industry insiders alike have anticipated its impact on the insurance industry.  Among other measures, the unprecedented financial reform law mandated significant federal regulation of insurance, created generous incentives for whistleblowers that provide quality information regarding potential securities violations, imposed aggressive pe ...

By Kara Altenbaumer-Price

For forty years, the Securities & Exchange Commission (SEC) has allowed defendants to settle SEC matters and pay monetary penalties and disgorgement while “neither admitting, nor denying” the truth of the allegations against them. This practice allowed the SEC to avoid overt denials of wrongdoing, while also allowing defendants avoid creating admissions that could be used against them in separate civil proceedings—or by D&O insurance carriers seeking to prove underlying facts necessary to exclude coverage under certain conduct-based exclusions.

The challenges associated with prioritizing payments under insurance programs with insufficient limits continue to surface in financial crisis litigation.  Claims arising out of the Lehman Brothers bankruptcy, seeking billions of dollars in damages, recently forced consideration of this difficult issue.  In August 2011, former directors and officers of failed financial giant Lehman Brothers Holdings Inc. (LBHI), including ex-CEO Richard Fuld, agreed to pay $90 million to settle a single securiti ...

As enhanced regulations and the Dodd-Frank whistleblower incentives begin generating an increase in SEC investigations and enforcement actions, insurance companies are offering expanded coverage for the cost associated with defending against governmental investigations.  See Kara Altenbaumer-Price, MBIA Case: Second Circuit Takes Broad View of Investigations Coverage Under D&O Policy, SAGACITY (USI, Dallas, Tex.), Sept. 30, 2011 (copy with author).  From the insured’s standpoint, the inv ...

Given the extraordinary cost of defending financial crisis claims and the unprecedented damage models implicated in many such lawsuits, the potential litigation exposure faced by an insured defendant often dwarfs the limits of even comprehensive insurance programs.  With too many claims and an unmanageable number of insureds, the practical problem is that the available insurance may be grossly insufficient to defend and resolve the pending claims against insured persons.  This raises the issu ...