Real estate investment trust VERIET, Inc. (formerly known as American Realty Capital Properties) announced this week that it agreed to a $765.5 million settlement to resolve shareholder class action and related lawsuits arising from a host of alleged securities violations and accounting fraud at ARCP since the company went public in 2011. Defendants in the class action settlement have agreed to pay more than $1 billion in compensation, including millions from ARCP’s former manager and principals, chief financial officer, and former auditor.

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The Seventh Circuit recently withdrew its controversial opinion that broadly interpreted an exclusion in Emmis Communications Corporation’s D&O policy, thereby barring coverage for losses in connection with claims of circumstances “as reported” under Emmis’ other insurance policy. The reversal, while very rare, was the correct result that alleviated concerns about the chilling effect the court’s broad reading of the exclusion may have on policyholders’ decisions to provide notice under all potentially applicable insurance policies.

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On August 19, 2019, a Texas appellate court reversed a trial court’s summary judgment in favor of an excess carrier, and ruled as a matter of law that an arbitration award in favor of a former officer was covered under the EPL component of a management liability policy.  In doing so, the court rejected the carrier’s reliance on an Insured v. Insured exclusion.  The court also looked to the policy’s definition of “Interrelated Wrongful Acts,” a concept typically relied on by carriers to deny or limit coverage, to sweep a variety of allegations within the scope of the policy’s EPL insuring agreement and an exception to the Insured v. Insured exclusion.

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Equifax Inc. recently announced that it has agreed to pay up to $700 million to settle numerous government investigations and consumer claims arising out of a 2017 breach that exposed Social Security numbers, addresses and other personal data belonging to over 148 million individuals. Following the breach, Equifax faced investigations from the Federal Trade Commission, the Consumer Financial Protection Bureau, all 50 state attorneys general and consumers prosecuting nationwide multidistrict litigation. As part of the deal, Equifax will contribute approximately $300 million to compensate consumers, with the potential to increase to $425 million depending on the number of claims filed. Equifax also agreed to pay $175 million to state governments, plus another $100 million in civil penalties to the CFPB.
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On June 17, 2019, the First Circuit held that an insurer’s duty to defend was triggered because the underlying complaint set forth claims that required a showing of intent as well as claims that sought recovery for conduct that “fits comfortably within the definition of an ‘accident.’” In Zurich American Ins. Co v. Electricity Maine, LLC, Zurich sought declaratory judgment that, under a D&O policy, it had no duty to defend the insured, Electricity Maine, an electrical utility company being sued in the underlying class action. Zurich argued it had no duty to defend because the underlying complaint failed to allege that Electricity Maine engaged in conduct that qualified as an “occurrence” or that caused “bodily injury” under the terms of the policy. The First Circuit disagreed.

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The May 13, 2019 decision by the US Supreme Court in Apple, Inc. v. Pepper has brought antitrust concerns, and the insurance issues they raise, front and center.  While Apple, Inc., of course, is a publicly traded company, private companies can also fall victim to these issues and need to look to coverage for protection. 

The Delaware Superior Court ruled that insurers could not rely on Written Consent and Cooperation clauses in directors and officers liability insurance policies to avoid coverage for settlements by Dole Food Company, Inc. (“Dole”) in shareholder disputes involving fraud in a go-private transaction.

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Hunton Andrews Kurth LLP partner Lorie Masters, partnering with insurance broker Marsh and others, analyzed the often complex issues raised by the insurance coverage actions posed by actions alleging violations of antitrust laws.  “Optimizing Antitrust Coverage in Private Company D&O Policies,” published by Marsh in Insights.  Investigations invoking antitrust laws raise the prospect of

In an article appearing in Electric Light & Power, Hunton insurance recovery lawyers, Lawrence Bracken, Sergio Oehninger and Alexander Russo discuss the insurability of losses resulting from the recent wildfires in California.  Many affected by the tragedy have tried to shift responsibility to utility and power companies, which also may face subrogation claims from