In the wake of Hurricanes Harvey and Irma, policyholders can expect insurers to put forward strong objections to some of the most consequential claims asserted by insureds. In a recent client alert, our colleagues Joe Jean, Geoffrey Greeves and Vince Morgan provided insight into business interruption insurance and dealing with the aftermath of wide-impact catastrophes.
It’s now accepted wisdom that virtually all public company mergers and acquisitions will be challenged with at least one lawsuit—over 95% of them are. A less well-publicized form of challenge—and one that is both fascinating and perplexing for those interested in securities litigation—is the unique creature of Delaware law known as the appraisal proceeding. Under Delaware General Corporation Law §262, shareholders dissenting from a merger on grounds that the share price they’ll receive is inadequate “shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholder’s shares of stock.” If the court finds that the deal price is lower than fair market value, the acquiring corporation must pay the difference to the dissenting shareholders, plus interest. The court may also award their attorneys’ and experts’ fees, which can be significant. This process has created a cottage industry of “appraisal arbitrage,” in which hedge funds purchase shares in hopes of securing a higher price for those shares through appraisal. Fortunately, D&O insurance might be available to cover the acquired company’s defense and other costs.
Fashion is sexy; insurance is not. So it’s easy to think of the two separately. But there are many points of intersection. Some of those intersections are not industry-specific: like other industries, fashion—design houses, retailers, textile manufacturers, modeling agencies—carries property, D&O, cyber, and many other lines of insurance. But unique aspects of the fashion world, and recent litigation trends affecting it, underscore the importance for the fashion industry to understand insurance in order to maximize successful recovery of insurance assets. Here, we comment briefly on three areas: IP, employment, and antitrust.
Imagine you are a prime contractor to a Department of the United States of America supplying logistical support for the war on terrorism in Afghanistan. As the prime, you are kicking on all cylinders, including purchasing comprehensive Employer’s Liability, Workers’ Compensation and Defense Base Act (DBA) insurance to cover your own employees against a worker injury claim abroad.
Then the phone rings.
A 30-year-old American worker hired by your subcontractor working on base encountered a swarm of bees while painting; he fell and was crippled. The sub isn’t paying his medical expenses and is apparently nowhere to be found. The injured employee’s bulldog lawyer is on the line threatening to sue your company directly for his client’s devastating injuries.
How can this be?
DBA coverage is workers’ compensation insurance that employers may turn to in the event that an employee is injured while working on a contract financed by the U.S. Government and performed outside the United States. Section 5(a) of the Act provides that “a contractor shall be deemed the employer of a subcontractor’s employees if the subcontractor fails to secure the payment of compensation.”
Last week, I had the great fortune of going to Cancun with my family. Sun, white sand beaches, amazing Mayan ruins (and traditions) intact. I’m sure you know what it’s like—kids buried in sand, beaming smiles, you relaxing in the sun (perhaps a touch of pink on the shoulders and nose), and an umbrella drink (or two).
And then, with little more than 30 minutes warning, came the rain. And I mean RAIN. Tons of it. Don’t believe me? See for yourself.
That is road, not a river. Those are cars, not boats.
Being in the insurance recovery business, after family concerns my mind immediately started accounting for the losses arising from the storm-related floods. Who was ready for this? Who thought they were ready for this? Who was totally unprepared? And did any of that matter?
Readers of this blog have come to expect from our lawyers incisive and reliable analysis of the most important insurance coverage issues of the day. At least one judge apparently feels the same way.
In a recent decision in the ongoing coverage dispute brought by TIAA-CREF against its various D&O carriers, Judge Jan Jurden cited a piece written by Peter Gillon in Law360 (“Another Blow Dealt to Restitution, Disgorgement Defense”) as legal authority for her conclusion that “the current trend in New York and additional jurisdictions ‘has been for courts to narrow the [disgorgement] defense considerably,’ and in some cases ‘reject insurers’ restitution/disgorgement defense outright.’”
It’s a jungle out there. Penalties imposed under the Foreign Corrupt Practice Act for bribery charges proliferated like vines in 2016. In the dramatic conclusion of the Brazil-based Operation Car Wash probe, Brazilian construction giant Odebrecht-Braskem agreed to pay U.S., Brazilian and Swiss authorities $3.5 billion for paying bribes to government officials around the world. Teva, the international pharmaceutical company, was revealed to have paid bribes to Russian, Ukrainian and Mexican officials, and would have to pay nearly $500 million in penalties.
But while these penalties are eye-catching, the internal investigations that responsible corporations undertake to avoid them can be even more expensive. A thorough internal investigation includes hiring outside attorneys, accountants, experts and consultants and sending them around the globe to probe potential bad acts in a company’s foreign offices. Sometimes, the fees continue to roll in even after settlement, when companies are ordered to pay outside monitors to make sure they are still complying with their FCPA obligations. A company may easily find itself on the receiving end of a multi-million dollar bill.
No matter the industry, businesses continue to face ever-escalating workers’ comp insurance premiums. In an effort to keep costs down, many companies are turning to an increasingly popular alternative to traditional “guaranteed cost” or “retrospective premium” workers’ comp programs: “large deductible” (LD) policies. LD policies theoretically give businesses greater control over claims exposure and costs while at the same time satisfying regulatory requirements by having an insurance company as the ultimate guarantor of claims payments. But while some businesses may save money with LD policies, they may also find their assets tied up for years unless they challenge some common—and often problematic—terms and conditions of their LD policy programs.
In The Odyssey, Homer describes Orion as a giant hunter armed with bronze club. As the legend goes, Orion was killed—either by the sting of a great scorpion or by the bow of Artemis—and was placed among the stars, creating the well-known constellation.
Orion Insurance Company is now set to join its mythic namesake as an artifact of history, though without the long-lasting twinkle. Barring one important, if remote, opt-out scenario, Orion and its sister company, the London and Overseas Insurance Company Limited (collectively OIC), are expected to dim and fade away over the next few years.