William Passannante, co-chair of Anderson Kill's insurance recovery group, said that Judge Wallace is experienced in coverage issues and that Delaware courts will deal with more layers of nuance than other jurisdictions because of the extent of developed case law around D&O issues.

"Part of it is [that] Judge Wallace will see more D&O disputes in the next 18 months than most judges will see in a decade, and Delaware's judiciary is relatively small in terms of the number of superior court judges," he said.

In his view, policyholders would do well to preserve factual questions — like litigation costs — in bump-up disputes so that future judges would analyze issues of fact in the light most favorable to the nonmoving party.

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