Anderson Kill represents enterprise resource and supply chain management software provider QAD regarding Directors & Officers liability insurance coverage, including defense costs and indemnity payments, for the company and the company’s directors arising out of the securities litigation entitled Nantahala Capital Partners II Limited Partnership v. QAD et al., in the Court of Chancery of the State of Delaware. Following a series of mediations, Anderson Kill was able to negotiate a favorable settlement for QAD and its directors and officers, the terms of which settlement is confidential.

Anderson Kill filed an insurance coverage action on behalf of Crestview against its Directors and Officers insurance companies to recover over $36 million in defense costs incurred by Crestview in defending litigation filed against Crestview, Crestview’s principals, and Crestview’s affiliates by William Koch, his company Oxbow Carbon LLC and Koch’s affiliates. The insurance companies have asserted that there is only coverage for $3.5 million of Crestview’s defense costs based on, among other things, various policy exclusions, including the breach of contract exclusion, and the insurance companies’ assertion that the policies do not cover the cost of litigating counterclaims. In July 2021, in an important ruling concerning discovery, the New York Supreme Court held that attorney-client privilege and work product protect communications between the policyholder and its insurance broker and that the privilege can even apply to internal communications prepared in anticipation of litigation. Policyholders frequently rely on their insurance broker for advice concerning insurance claims and need to protect those communications from discovery. The claim was settled after February 2022. The scope of the breach of contract exclusion is a frequently litigated issue that is often raised in private company D&O insurance disputes, as is the counterclaim coverage issue.

Represented policyholder to recover D&O liability insurance on account of civil and criminal antitrust claims.

Represented policyholder to recover D&O liability insurance and prevent rescission action.

Federal Ins. Co. v. Kozlowski, 18 A.D.3d 33, 792 N.Y.S.2d 397 (1st Dep’t 2005).

Princeton University – summary judgment as to liability in D&O case. Trustees of Princeton University v. National Union Fire Ins. Co. of Pittsburgh, PA., 83 N.Y.S.2d 437, appeal dismissed, 11 N.Y.3d 847 (Nov. 24, 2008)

WebMd Health — summary judgment to advance defense costs in D&O case.

HLTH Corp. v. Agricultural Exc. & Sur. Ins. Co., 2008 WL 3413327 (2008), appeal as to certain insurance companies Axis Reinsurance Co. v. HLTH Corp., No. 565, 2009 (2010). Final insurance company, New Hampshire Insurance Company, withdrew “recoupment” claim (2013).