D&O, Management and Professional Liability

Mission Statement
The D&O and Management Liability Committee's goal is to promote an enhanced environment for the efficient and fair resolution of D&O coverage disputes. We focus our efforts on promoting communication among D&O practitioners with a balanced perspective, especially with regard to current developments in insurance law and legal issues involved in underlying claims.   

2023-2024 Co-Chairs
Nancy Kornegay
Joe Monteleone

Contact: DandOmanagement @ americancollegecoverage.org

Selected Presentations & Papers:

Posted 11/30/2023
D&O Insurance: An Essential Tool in the Evolving ESG Landscape

Posted 10/27/2023 
10th Circuit Holds two claims from separate warehouse lenders were “interrelated” when they arose from the same audit.

Posted 10/25/2023 
Fellow Marc Gravely authors Amicus Brief in Texas Supreme Court Case of Cobalt v Illinois National

Posted 10/25/2023: 
Texas Supreme Court Hears Oral Argument on Whether $220M Non-Recourse Settlement is a Loss Under D&O Policy
Other issues include the claimant’s standing and whether the settlement satisfies the Hamel actual adversarial trial requirement.

Posted 10/2023
Ninth Circuit Revives in Part Facebook Privacy-Related Securities Suit by Kevin LaCroix 

Posted 10/16/2023
Assessing D&O Coverage Amid Challenges To DEI Policies

Posted 10/16/2023
Second Circuit Holds that a “Prior Knowledge” Exclusion Excuses Insurer from its Duty to Defend

Posted 10/10/2023 
Sam Bankman-Fried Case Provides Lessons on Fraud and D&O Insurance

Posted 9/27/2023

Delaware Supreme Court Affirms that D&O Insurer Must Cover Settlement of Alleged False Claims Act Violations

Posted 8/31/2023

Chris Mosley Discusses The SVB Bankruptcy And Its Lessons For D&O Insurance Programs On The Priority of Payments Clause

Posted 8/16/2023

A Brief Discussion of the Viacom CBS Decision
By Joseph P. Monteleone and Nancy R. Kornegay

Posted 8/14/2023

Delaware Court Holds Bump-Up Exclusion Ambiguous as to Whether it Distinguishes between Acquisitions and Mergers

Posted 8/14/2023

Late Notice Precludes Excess Coverage for High-Profile Harvard Suit

Posted 8/10/2023

1st Circuit Affirms Late Notice Coverage Denial in the Harvard Case

Posted 8/10/2023

Board Oversight Duties: Recent Adventures in the Delaware Chancery Court

Posted 8/9/2023

Southern District of New York Holds D&O Insurer Liable for $4.5 million in Arbitration Costs

Posted 7/11/2023

Nevada Enacts Statute Prohibiting Burning Limits Policies

Posted 6/23/2023 

Contractual Liability Exclusion Does Not Bar Coverage for Fiduciary Duty Claim

The Fifth Circuit rejects an insurer’s attempt to apply a contractual liability exclusion to preclude coverage for an underlying breach of fiduciary duty claim. Read more.

Posted 5/15/2023

Fifth Circuit Holds that a Breach of Fiduciary Duty Claim is not Excluded by the E&O Policy’s Contractual Liability Exclusion

Posted 5/10/2023

FTX Proceedings Highlight D&O Issues Amid Bankruptcy

Posted 4/21/2023

SC Fed Court Rules in Favor of Insurer, Allowing Them To Recoup Defense Costs in Attorney E&O Claim

The Court granted summary judgment in favor of the insurer in the declaratory judgment action, finding that the insured had prior knowledge of the potential claim before the inception of the policy. The insurer argued that the insured should have provided notice of a potential claim as soon as the insured became aware of the statute of limitations issue or when the lawsuit was dismissed with prejudice. Read more.

Posted 4/11/2023

S.C. Law Firm Must Reimburse Insurer for Defense Costs

An insurer can recoup more than $188,000 from a law firm that it defended in an underlying legal malpractice suit, a South Carolina federal court ruled, nearly a month after finding the carrier had no duty to defend or indemnify the firm. Read more.

Posted 4/11/2023

Texas Appellate Court Reverses Judgment For Insurer and Remands Dispute Regarding Extent of Coverage Under a Crime Policy

The appellate court concluded that when the insured's employee took commissions to which he was not entitled because the commission payments were based on fraudulent claims, the employee had committed a "theft" and therefore, there was coverage under the policy terms.

Posted 3/29/2023

When Does a Claim Become a “Claim”? A Lesson on Timely Notice

The Southern District of New York denied a policyholder’s claim for coverage in Pine Management, Inc. v. Colony Insurance Company based on  a letter delivered to the insured two weeks before the policy incepting constituting a claim. Read more.

Posted 3/27/2023

Policyholder Perspective: Advantages of Delaware Law for Litigating D&O Coverage Disputes

Posted 2/22/2023

Delaware Court: Pre-Merger Target Company Execs Are Insured Persons Under SPAC’S Post-Merger Tail Policy

A Delaware Superior Court Judge has held that a SPAC’s post-merger runoff policy provides coverage for the defense fees of former directors of the pre-Merger target company for alleged Wrongful Acts that the occurred prior to the merger – even though the former directors were not directors or officers of the SPAC at the time they allegedly committed the alleged Wrongful Acts. Read more.

Posted 2/21/2023

Viacom's Insurers Must Face Coverage Suits Over CBS Merger

A Delaware state judge ruled that several of Viacom's directors and officers insurance carriers must face the media company's suits seeking coverage for litigation stemming from its merger with CBS, deeming the dispute ripe for consideration. Read more.

Posted 2/10/2023

Fifth Circuit Affirms Judgment in Favor of Insured Under a Funds Transfer Fraud Endorsement of a Crime Protection Insurance Policy

This case involves a denial of coverage for a claim due to a fraudulent routing number supplied to the insured escrow agent. Following a denial of the insured’s proof of loss on the basis that the loss was not covered by the funds transfer fraud  endorsement in the insured’s crime protection insurance policy, the insured filed suit after and won a ruling on coverage in the district court. On appeal, the Fifth Circuit affirmed holding that the only interpretation of Clause A of the policy that does not render Clause B meaningless is that coverage is triggered under the funds transfer fraud endorsement for a loss caused by a written instruction being forged or altered by someone other than the insured without the insured’s knowledge or consent prior to being issued by the insured. Read more.

Posted 2/9/2023

Delaware Chancery Court Holds that the Duty of Oversight Extends Beyond Directors to Corporate Officers.

This decision came after McDonald’s shareholders sued the company’s former head of human resources, alleging that the officer breached his duty of oversight by “allowing a corporate culture to develop that condoned sexual harassment and misconduct.” Read more.

Posted 1/31/2023

Second Major Bump-Up Exclusion Decision Handed Down in the Last Two Weeks

For the second time in recent days, a court has held that a D&O insurance policy provision operates to preclude coverage for claims against an insured company and its executives that the consideration to be paid for the acquisition of the insured company is inadequate. The Seventh Circuit in a recent decision held that the “inadequate consideration” exclusion (sometimes referred to as the “bump-up” exclusion) in the applicable D&O insurance precludes coverage for a claim that disclosure in the company’s proxy statement omitted information that could have been used to negotiate a higher price. As is often the case, the specific policy language was key to the decision. Read more.

Posted 1/30/2023

Insured Fails to Provide Timely Notice of Claim and Prior Knowledge Exclusion Bars Coverage in Subsequent Policy

A magistrate for the Western District of Texas granted an excess insurer's motion for summary judgment, finding that under the plain terms of primary professional liability policy to which the excess policy followed form, that the insured failed to provide timely notice of claim and that prior knowledge exclusion barred coverage in subsequent policy. Read more.

Posted 1/24/2023

New York Federal Court Applies Kentucky Law and Denies Coverage Based on Insured vs Insured Exclusion

The United States District Court for the Southern District of New York, applying Kentucky law, has held that an insured v. insured exclusion bars coverage for a lawsuit brought by both insured and non-insured security holders as well as a non-security-holder, non-insured entity.  The court found that an exception to the exclusion did not apply because an insured provided substantial assistance in bringing the case against the company’s directors and officers. Gregory v. Navigators Ins. Co., No. 2022 WL 17551995 (S.D.N.Y. Dec. 9, 2022). Read more.


Two Claims Related But Deemed Made During the Later Claim’s Policy Period

A Delaware court holds, in reliance on policy language the court found to be clear and unambiguous, that two related claims were deemed first made not at the time the earlier claim but rather during the policy period of the policy in force at the time the later claim was made. Read more.

Posted 1/20/2023

Bump Up Exclusion Bars Coverage for Insured Company’s Acquisition Underpayment

A California court interpreted an unusually worded bump up exclusion that arguably applied to preclude coverage whether or not the insured company was the acquiror or the acquisition target, the court held that the exclusion unambiguously precluded coverage for the settlement of a claim that the directors of Onyx Pharmaceuticals, the insured company, had breached their duties by accepting an inadequate amount for the sale of their company. Read more.

Posted 1/20/2023

Execs Covered For Sears Bankruptcy Claims, Del. Judge Says

Two excess directors and officers insurers must defend a real estate investment trust and its executives from underlying bankruptcy litigation accusing them of siphoning billions of dollars from Sears, a Delaware Superior Court judge said in a decision unsealed this month. The Court held that the insureds sufficiently demonstrated an alternative claim for coverage for an adversary proceeding as a "non-securities claim" and found that coverage can't be denied because the proceeding is related to a previous action. Read more.

Posted 1/17/2023

Delaware Supreme Court Sides With Insurers In $20M D&O Dispute over Appraisal Costs

The Delaware Supreme Court upheld a ruling that a mining company doesn't have insurance coverage for its $20 million-plus legal bill stemming from a 2017 stockholder appraisal lawsuit, rejecting the company's argument that Montana law should apply to the dispute.

A three-justice Delaware high court panel said in an opinion Thursday that the insured can't rely on Montana's coverage by estoppel remedy to argue that insurers must cover the company's defense costs for appraisal litigation under directors and officers policies. Read more.

Posted 1/13/2023

Insurer Fights Law Firm's Bid For Malpractice Case Coverage Based on Failure to Disclose Claim

An insurance company has told a Tennessee federal court it shouldn't have to honor the $1 million liability policy it sold to a law firm because when the firm president renewed the policy, he didn't disclose that a malpractice claim could be coming. Read more.

Posted 1/4/2023

D&O Diary’s 10 Ten D&O Stories of 2022

For later articles, please visit the D&O, Management and Professional Liability Archive Page.

Past Co-Chairs

Bob Allen
John Mumford
Seth Lamden

John Mumford
Joann Lytle

John Mumford
Joann Lytle

Michael Manire
Seth Lamden

Michael Manire
Mitchell Dolin

2017-2018 Co-Chairs
Michael Manire
Mitchell Dolin

Michael Manire
Mitchell Dolin