image

Directors and Officers Insurance Recovery

Overview

Disappointed investors or employees sue corporations and their directors and officers for tumbling stock prices or employment-related claims with more frequency. Insurance companies sell more complex insurance products to defray their risk associated with these lawsuits. Anderson Kill, named by Chambers USA as one of the nation’s top law firms nationally for insurance dispute resolution, represents D&O policyholders in disputes with insurance companies.

Our comprehensive experience upholding and advancing policyholders’ rights in Directors & Officers insurance coverage includes A-Side Coverage and B-Side Coverage, Employment Practices Liability, and Entity Securities Coverage. We have faced the complex disputes involving contentious issues such as right to select counsel and defense costs, definition of claim and loss, punitive or exemplary damages, and the litany of exclusions. We handle claims in bankruptcy proceedings. We address allocation issues in addition to the many other issues raised by insurance companies and faced by directors and officers in insurance disputes.

Anderson Kill knows insurance coverage inside and out. We put our far-reaching experience and thorough historical database of knowledge to work for our clients with incisive scrutiny. Our approach is to analyze our clients’ case and put a tailored strategy before the court. With our experience handling hundreds of significant insurance recovery cases, we can anticipate arguments and obtain favorable settlements and decisions for our clients.

Experience

    • Eric Spiel (former officer of Modell’s Sporting Goods). Anderson Kill represents Eric Spiel in pursuit of ongoing D&O coverage and to defend him against claims that the D&O insurance company should be required to reimburse the plaintiff for amounts paid to Mr. Spiel. The plaintiff in Modell v. Argonaut Insurance Company and Eric Spiel (SDNY), a policyholder covered under the same D&O policy as the one covering Mr. Spiel, alleges that Mr. Spiel breached a provision in their shared D&O policy. The insurance company joins Mr. Spiel in arguing that Modell’s claim is baseless, that no breach occurred, and that moreover Modell has no standing to assert that the insurance company should deny coverage to another policyholder. Mr. Spiel and Argonaut have both filed motions to dismiss the Modell claim for failure to state a cause of action.  This motion is currently pending before the court.

 

  • Benefytt Technologies, Inc. In a suit filed in Delaware state court in February 2021, Benefytt seeks to secure D&O and E&O protection for 3 underlying claims for a securities class action defense, a consumer class action defense and indemnification, and repayment of defense costs and statutory market conduct examination claim expenses. This coverage litigation implicates two lines of liability insurance coverage. The dispute also involves arguments by certain insurance companies over related claims defenses involving claim placement from policy period to policy period, late notice arguments, notice of wrongful acts, and recoupment claims. To date we have secured over $21 million in coverage settlements, and the litigation remains pending. Trial will likely take place in 2024.

 

COMPLETED CASES

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).

Events

Do You Want to Get the Deal Done? Obstacles and Opportunities in Contract Negotiation
  • Pamela D. Hans
  • /
  • September 14, 2023
  • /
  • Ottawa, Canada
image
Update on U.S. Securities Litigation and Coverage Considerations
  • Raymond A. Mascia Jr.
  • /
  • June 17, 2022
  • /
  • Live Webinar
image
COVID-19, ESG, and SPACs, Oh My!: Emerging D&O Liabilities
  • Joshua Gold William G. Passannante
  • /
  • November 11, 2021
  • /
  • New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019
image
Environmental Insurance Coverage Under CGL, Property, and D&O Policies for PFASs, ESG, NRS, CERCLA, RCRA, OPA, and Others (2023)
  • Robert M. Horkovich
  • /
  • October 3, 2023
image
Anderson Kill’s 15th Annual D&O Conference “D&O Insurance in the Era of Technological and Enforcement Uncertainty”
  • Joshua Gold Raymond A. Mascia Jr.William G. Passannante
  • /
  • June 8, 2017
  • /
  • Upper Story, D&D Building, 979 Third Avenue, 14th Fl., New York, NY 10022
image
Recent Developments Regarding the “Disgorgement” Defense in D&O and E&O Liability Insurance Claims
  • Marshall Gilinsky
  • /
  • October 27, 2016
  • /
  • Canada, Quebec
image
D&O Strategies – Be Smart, Be Aware
  • Joshua Gold
  • /
  • November 19, 2015
  • /
  • Marsh's Boston Office, 99 High Street, Boston, MA
image
What you need to D-and-Know about Directors and Officers Insurance
  • Carrie Maylor DiCanio Joshua Gold William G. Passannante
  • /
  • March 12, 2015
  • /
  • Westin Times Square, 270 West 43rd Street - New York, NY
image
Everything a Risk Manager Needs to Know About D&O Liability and Insurance
  • William G. Passannante
  • /
  • October 21, 2015
  • /
  • St. Petersburg, FL
image

Publications

CLIMATE CHANGE, ESG, AND D&O INSURANCE: COLLISION OR COOPERATION?
  • Journal of Emerging Issues in Litigation
image
CLAIMS RELATED TO SPECIAL PURPOSE ACQUISITION COMPANY AND D&O INSURANCE FACE INCREASED INSURER SCRUTINY
  • American Bar Association (ABA)
image
SPACS, COVID-19, AND ESG, OH MY! — WHAT’S A DIRECTOR TO DO?
  • National Association of Corporate Directors (NACD)
image
VIEWPOINT: DUE PROCESS, BILL COSBY, AND D&O LIABILITY INSURANCE CONDUCT EXCLUSIONS
  • Claims Journal
image
THE YEAR OF PEAK SPAC? THE SPAC GOLD RUSH AND IMPLICATIONS FOR D&O LIABILITY AND INSURANCE
  • New York Law Journal (NYLJ)
image
ANTICIPATING CORONAVIRUS D&O INSURANCE CLAIMS
  • Risk Management Magazine
image
NJ COS. MAY HAVE INSURANCE COVERAGE FOR COVID-19 LOSSES
  • Law 360
image
DELAWARE COURT STRENGTHENS APPLICABILITY OF ‘LARGER SETTLEMENT RULE’ TO D&O ALLOCATION DISPUTES DESPITE ‘RELATIVE LEGAL EXPOSURE’ POLICY PROVISION
  • Policyholder Advisor & Alert
image
D&O LIABILITY INSURANCE: WHAT WILL IMPACT BE OF A KINDER GENTLER CORPORATION?
  • New York Law Journal (NYLJ)
image
D&O POLICY ‘BANKRUPTCY EXCLUSION’ HELD TO BE AN UNENFORCEABLE ‘IPSO FACTO’ CLAUSE
  • New York Law Journal (NYLJ)
image
HOW CHANGING CORPORATE PURPOSE MAY AFFECT D&O INSURANCE
  • Law360
image
MIND YOUR D’S AND O’S (INSURANCE): PROTECTING THE BOARD FROM EXECUTIVE CYBER RISK
  • Policyholder Advisor & Alert
image
D&O LIABILITY: LOOKING BACK AT 2018 & AHEAD TO 2019
  • PropertyCasualty360
image
5 THINGS TO KNOW ABOUT TRANSACTION LIABILITY INSURANCE
  • Property Casualty 360
image
D&O INSURANCE FOR CRYPTOCURRENCY LITIGATION
  • Policyholder Advisor & Alert
image
10 TRAPS IN YOUR D&O INSURANCE
  • Policyholder Advisor & Alert
image

News

Former Modell’s CEO Loses Insurance Row Over Officer Legal Costs
  • February 9, 2024
image
Banking Crisis Has Implications for D&O Insurance Sector
  • March 21, 2023
image
Crypto Winter Raises Host of D&O Coverage Issues
  • February 10, 2023
image
Cyber, Crypto Top D&O Concerns as Fears Over SPAC Claims Ease
  • February 1, 2023
image
Executive Risks Grow As SEC Climate Disclosure Rules Evolve
  • February 1, 2023
image
D&O Coverage Offers Layered Protection In Bankruptcy
  • September 21, 2022
image
Anderson Kill Shareholder Raymond A. Mascia Jr. Named a Rising Star in Insurance by Law360
  • July 7, 2020
image
D&O Insurance Cases to Watch in 2023
  • January 2, 2023
image
D&O Insurance Cases To Watch In 2022
  • January 3, 2022
image
Businesses advised to review D&O, other policies for ESG risk
  • December 8, 2022
image
D&O, Employment Practices Insurers Sing the Varsity Blues
  • May 7, 2019
image
Anderson Kill Insurance Recovery Attorneys to Speak at RIMS 2019
  • April 4, 2019
image
Tips for Executives To Maximize D&O Coverage
  • June 27, 2016
image
Environmental responsibility is latest front in D&O litigation
  • June 6, 2015
image
Lawyers Weigh In On High Court’s Omnicare Decision
  • March 24, 2015
image
Insurance MVP: Anderson Kill’s William Passannante
  • December 4, 2013
image

People

image
Cameron R. Argetsinger

Shareholder , Washington, DC

image
image
Carrie Maylor DiCanio

Office Managing Shareholder , Denver

image
image
Diana Shafter Gliedman

Shareholder , New York

image
image
Cort T. Malone

Shareholder , New York

image
image
Raymond A. Mascia Jr.

Shareholder , New York

image
image
Seán McCabe

Attorney , New York

image
image
William G. Passannante

Shareholder , New York

image
Key Contact(s)
image
William G. Passannante
View Moreimage

© Copyright 2024 by Anderson Kill P.C.