In the last decade, per- and polyfluoroalkyl compounds (PFAS) increasingly have become the subject of actual or potential liability for a widening group of companies, with potential liability arising from both private tort lawsuits and governmental enforcement of environmental laws and regulations. In a recent Practical Guidance® Practice Note, Insurance Coverage for PFAS Liability, our colleague Tamara Bruno provides a comprehensive breakdown of this rapidly growing area of coverage need.
Articles Posted in Litigation
Closing Up the SPAC Shop: Insurance Consequences and Opportunities for Liquidating SPACs
In 2020 and 2021, Special Purpose Acquisition Companies (SPACs) were all the rage. A SPAC is a “blank check company,” publicly traded, and organized for the purpose of merging with a private company. It’s a mechanism for a private operating company to go public without doing its own IPO. Though SPACs have existed for decades, their use skyrocketed in the last couple years. While insurers, brokers and attorneys have developed a level of expertise on risks and insurance coverage in connection with SPAC formation and completed de-SPAC transactions, the insurance implications of failed SPACs was not addressed in 2020 and 2021 and is still not fully understood or appreciated.
When Actual Knowledge Is Not Notice: Harvard Loses Excess Coverage for Defense Costs in Case Litigated All the Way to Supreme Court
Recently, amid the tempest of media coverage surrounding Supreme Court oral arguments in the case of Students for Fair Admission v. President & Fellows of Harvard College, another federal court quietly issued a dispositive order in related coverage litigation, holding that Harvard’s excess carrier, Zurich, had no coverage obligation in the underlying case because Harvard did not provide timely notice under a “claims-made-and-reported” policy. The case is President and Fellows of Harvard College v. Zurich Am. Ins. Co., 1:21-cv-11530-ADB (D. Mass.).
California and New York to Open One-Year Windows Reviving Time-Barred Adult Sexual Assault Claims
Four months ago, New York Governor Kathy Hochul signed the Adult Survivors Act (ASA) (S.66A/A.648A), creating a one-year window, beginning November 24, 2022, for adult survivors of sexual assault to bring civil claims against their alleged attackers which otherwise would have been time barred. On September 19, 2022, California Governor Gavin Newsom signed an equivalent law, the Sexual Abuse and Cover Up Accountability Act (AB-2777), which similarly suspends the statute of limitations for civil claims of sexual assault and other vicarious offenses arising out of that conduct starting January 1, 2023. These laws will likely generate a surge of litigation in California and New York, undoubtedly impacting many businesses operating there. Many, if not most, of those companies will look to insurers to furnish legal defenses and to financially support settlements or damage awards based on past policies.
Strengthening Corporate Officer Protection: Delaware’s Updated Corporate Exculpation Law and Its Impact on D&O Liability Insurance
As the preferred place of incorporation for most U.S. companies, Delaware has long been a leader in the development of statutory and common law on corporate governance. In keeping with this role, the Delaware legislature recently amended its corporate code to permit enhanced legal exculpation of officers of Delaware corporations. Let’s look at this amendment and its implications for D&O insurance.
Abortion as an Employee Health Benefit – How to Protect against Potential Liability Post-Dobbs
Amazon. Bank of America. Citigroup. Dick’s Sporting Goods. JP Morgan. Kroger. Meta. Microsoft. Procter & Gamble. Target. Walt Disney Company. These are just a few of what is a growing list of companies that have offered to cover costs for employees who may now need to travel out of state to receive abortion care in light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. But companies that are stepping up to further protect their employees’ reproductive rights are choosing to do so in the face of potential public backlash and uncertain legal risks.
Forced to Flee: Insuring Against Political Risks
IKEA’s Billy bookcase—so popular that one is reportedly sold every 10 seconds—recently got even cheaper, at least for Russians. IKEA is holding a fire sale as the company closes its stores and exits the Russian market. The Swedish furnituremaker’s exit from Russia is just the latest in a string of actions by over 1,000 companies—including Disney, Goldman Sachs, IBM, McDonalds and Starbucks—that are curtailing operations in the country in response to the Russia/Ukraine conflict. As of June 2022, global companies fleeing Russia have reportedly racked up more the $59 billion in losses associated with their departure. Of course, this pales in comparison to the more than 10,000 civilian casualties and $600 billion in economic losses that Ukraine has suffered since the conflict began. But even though the corporate exodus from Russia for many companies is voluntary (and has even been used by some as a positive public-relations spin), Russia has threated to confiscate Russian-based assets of companies from countries that Russia considers hostile to its interests, and U.S. and EU sanctions may practically serve to prohibit some companies from operating in Russia, all of which highlights that additional risks lie ahead.
“Stranger Danger”: The Perils of Loss Portfolio Transfers and Third-Party Administrator Claims Handling
The past several decades have muddied what once was a clear relationship between policyholders and their insurers. For pre-1987 occurrence-based policies in particular, policyholders face an increasingly familiar scenario: one day, they learn they are no longer dealing with the insurer that sold them insurance. A stranger has crept into the relationship.
California Appellate Court Rules for Policyholders on COVID Coverage Appeal
On July 13, 2022, the California Second District Court of Appeal issued a published decision reversing a trial court’s dismissal of a policyholder’s COVID-19 coverage claim. In Marina Pacific Hotel & Suites, LLC v. Fireman’s Fund Insurance Company, the Court took two remarkable steps in the context of nationwide COVID-19 litigation. First, the Court recognized that courts must accept as true properly alleged facts when deciding a pleading challenge. Second, the Court did not merely recite the long-established rules of construction for insurance policies that apply in California and most states; rather, it followed those rules by engaging with the actual policy language.
War Exclusion Does Not Bar Recovery for Losses from a Nation-State Cyber Attack on Pharma Giant and the Effects on Insurance Policies from Increased Globalized Threats of Ransomware
Over the past few years, ransomware attacks have increased in frequency and demand size. And, increasingly, those attacks have targeted businesses and critical infrastructure organizations from across the globe. This trend is likely to continue. The Cybersecurity & Infrastructure Security Agency noted that cybersecurity authorities in the United States, Australia and the United Kingdom assess that “if the ransomware criminal business model continues to yield financial returns for ransomware actors, ransomware incidents will become more frequent. Every time a ransom is paid, it confirms the viability and financial attractiveness of the ransomware criminal business model.”