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D&O Insurance Cases to Watch in 2023

Law360 Insurance Authority

Federal appellate courts across the country are poised to weigh in on some of the thorniest issues in directors and officers coverage over the course of 2023, with opinions expected on whether government investigations count as securities claims, the so-called bump-up exclusion and a key False Claims Act dispute.

Here, Law360 breaks down the top D&O insurance cases to watch this year.


D&O Insurer Grapples with Opioid Claim


Kyle Brinkman, a partner at Blank Rome LLP, noted that in jurisdictions where courts have sided with policyholders' arguments that opioid suits allege claims for bodily injury in the general liability context, D&O carriers are more likely to have success raising that type of exclusion.

"There's at least going to be some risk in those jurisdictions that the D&O carriers will latch onto that and say if it was bodily injury for general liability purposes, it's bodily injury for D&O exclusion purposes," said Brinkman, who represents policyholders.


7th Circ. Nears Ruling in Drugmaker's False Claims Act Spat


Brinkman of Blank Rome said that kind of thoughtful analysis from judges has been the trend following the New York high court's ruling in J.P. Morgan Securities Inc. v. Vigilant Insurance Co., which held that a $140 million settlement payment by the bank's predecessor, Bear Stearns, wasn't an uninsurable penalty.

"We're seeing more of courts not reflexively looking at labels, but the facts and the alleged basis for the liabilities and the potential for compensatory relief," Brinkman said.

Policyholder attorneys are hopeful that a Seventh Circuit affirmation of Astellas' win will force insurers to draft clear exclusions about whether or not they intend to offer coverage for things like disgorgement, restitution and claims stemming from FCA investigations.

"It would be very easy for an insurance company to write an exclusion that says we don't cover any remedy in the nature of restitution, period," Brinkman said.

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"D&O Insurance Cases to Watch in 2023," by Josh Liberatore was published in Law360 Insurance Authority on January 2, 2023.