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On May 11, 2021, in Global Fitness Holdings, LLC v. Navigators Management Co., Inc., the United States Court of Appeals for the Sixth Circuit upheld a broad-form contractual liability exclusion in a D&O policy. As discussed in this article, the decision is important for several reasons, including: (1) it reaffirms the principle that broad-form contractual liability exclusions apply to the entire “Claim,” even when the “Claim” includes tort-based causes of action; and (2) it extends the “but for” test for applying the carveback to the contractual liability exclusion for liability “in the absence of such contract or agreement.”
Kennedys continues to deepen its bench of offerings with the addition of partner Judith A Selby to its New York office.
Storm clouds ahead: The US Supreme Court sidesteps issues relevant to ESG and climate change, while international and other pressures on corporate and D&O disclosures continue to mount
The US Supreme Court is trying its best to sidestep any material rulings on climate change decisions in view of its recent BP P.L.C. et al. v. Mayor and City Council of Baltimore decision and its refusal to review the Chevron Corp. v. City of Oakland, California case, wherein the Ninth Circuit held that climate change cases against large oil companies belong in state court.
Kennedys has been ranked as a Leading Firm in The Legal 500 US 2021, the guide to outstanding firms and lawyers across the United States.
The implications of the Delaware Supreme Court’s pronouncement that D&O liability for actual fraud is insurable
On March 3, 2021, the Delaware Supreme Court announced in RSUI Indemnity Co. v. Dole Food Company, Inc., et al., 248 A.3d 887 (Del. 2021) (“Dole”), that Delaware public policy permits indemnity insurance coverage for liability arising from fraud. Therefore, in Delaware, unscrupulous executives found to have lied to investors may potentially avoid direct responsibility for any damages caused and simply pass the buck for any judgment or settlement to the company’s Director’s & Officer’s (“D&O”) insurer.
Tik Tok: In 60 Seconds, 4 takeaways from the Colonial Pipeline Cyberattack that every company should know
On June 8, 2021, the CEO of the Colonial Pipeline Company, Joseph Blount, testified before the Senate Homeland Security and Governmental Affairs Committee about the ransomware cyberattack suffered by his company last month at the hands of the hacker group, the Dark Side. The attack caused the company to shut down its pipeline, which delivers approximately 45% of the East Coast's fuel supply.
As of May 26, 2021, the estimated market capitalization of the cryptocurrency market exceeded USD 1.7 trillion despite recent market fluctuations. There is growing interest by a wide range of publicly traded companies in incorporating crypto into their business models given the ongoing market development.
Professional liability policies generally insure policyholders for risks created by their professional negligence and, like many other liability insurance products, are often drafted so as not to cover losses arising from the insured’s intentional conduct. This is commonly achieved by including a negligence trigger in the insuring grant, such as a requirement that coverage will only be provided for losses arising from the insured’s negligent acts, errors, or omissions.
Big changes affecting summary judgment motions are now active in Florida state courts.
The Court’s decision likely will have significant impact on coverage for BIPA litigation. Additionally, the Court’s reasoning in its decision may even influence other privacy coverage matters.