December 2006

• Coverage Barred by Discrimination Exclusion in Non-Profit Liability Policy
• Eleventh Circuit Affirms No Coverage for Breach-of-Contract Claims under D&O Policy
• Direct Action Cannot Trigger Derivative Exception to I v. I Exclusion
• Insurer Properly Denied Coverage to Title Broker for Civil Actions in Light of Criminal Fraud Conviction
• Deposition Questioning Not a Claim for Purposes of Notice Requirement
• Oregon District Court Imposes Collusion Requirement on I v. I Exclusion
• Other Decisions of Note
• Claims-Made Policy Requiring That Wrongful Acts Occur During Policy Period Comports with Louisiana Public Policy
• Actual Notice of a Claim Triggers the Duty to Defend Even if the Insured Does Not Expressly Tender Its Defense
• Eleventh Circuit Interprets Heightened Pleading Standard under PSLRA
• Two Courts Reject Claim That D&O Policy Proceeds Are Part of Bankruptcy Estate
• How Can Professional Liability Carriers Effectively Monitor Health Care Risks?
• Owens-Corning Fiberglas Awarded Attorneys Fees and Prejudgment Interest in Coverage Dispute with D&O Insurer
• Former Director’s Bankruptcy Estate Has No Claim to Amounts Payable as Defense Costs under D&O Policy

December 7, 2006

• Court Rejects Argument That Bodily Injury Exclusion in D&O Policy Bars Coverage
• Coverage Barred for Alleged Sexual Harassment by Corporate Officer
• Property Damage Exclusion Bars Coverage for Construction Defects
• District Court Rejects Lead Plaintiff “Groups” under PSLRA
• Supreme Court Raises Critical Qui Tam Issues in Surprise Move
• New Hampshire Supreme Court: Prejudice Not Required to Establish Late Notice under Claims-Made Policy
• Ninth Circuit Finds No Coverage for Claims First Made Prior to Policy Issuance
• The Second Circuit Alters Standard Used in Review of Class Certification Motions
• Tenth Circuit Holds That E&O Coverage Does Not Extend to Intentional Acts
• Court Holds That Recklessness Can Constitute Negligence for Purpose of Duty to Defend

November 2006

• Professional Services, Broad Fund Exclusions in Binder Bar Coverage
• Ninth Circuit Rules That No Loss Occurs When Third Party Indemnifies Policyholder
• California Court Concludes Settlement Payments for Unpaid Wages May Constitute Loss Under D&O Policy
• Party Can Waive Right to Mediation Confidentiality Through Delay
• Insurer Not Obligated to Litigate Coverage Where Policy Soon to Be Exhausted
• Federal Court Declines to Decide Rescission Issues Until Underlying Shareholder Suits Resolved
• Company's Prior Knowledge of Trademark Dispute Relieves E&O Insurer of Duty to Defend
• Restitution Insurable in New Jersey If Benefit Accrues Only to Innocent Party
• Generic Letter Is Not Adequate Notice of Potential Claim
• Professional Services Exclusion Bars Coverage for Claim Arising Out of Sale of Property
• Notice-Prejudice Rule Inapplicable to Claims-Made Policy Under Delaware Law; Claims Not Related
• Other Decisions of Note
• E-SIGN May Involve "Fair Information" Privacy Duties
• G-L-B Remains a Hot Topic

October 2006

• District Court Denies Trustee's Motion to Refer Rescission Action to Bankruptcy Court
• Insured Directors and Officers Incurred No “Loss” When Uninsured Corporation Paid Settlement and Defense Costs
• Third Circuit Holds That Prior Knowledge Exclusion Requires Mixed Subjective/Objective Test
• Federal Court Predicts Restitution Is Uninsurable Under Hawaii Law
• Court Affirms No Coverage for Claim Reported After Expiration of Policy Period
• Notice During Extended Reporting Period Inadequate When Claim First Made During Policy Period
• Insurance Agency’s Failure to Pay Back Promissory Notes Not Failure to Perform “Professional Services” Under Policy
• Amended Complaint Relates Back to Previously Dismissed Complaint
• Other Decisions of Note
• New EEO Rules for Broadcasters Coming Soon
• FCC Seeks Comment on Public Interest Obligations of TV Broadcast Licensees
• FCC Authorizes New Non-Commercial Low Power FM Radio Service

September 2006

• Privacy Developments Continue to Raise Substantial Compliance Issues
• Wrongful Acts Deemed Related under E&O Policy
• Trust Officer’s Risky Investment Strategy Covered by D&O Insurance
• Ninth Circuit Determines Questions of Fact Preclude Summary Judgment in Favor of Insurer Regarding Allegations of Willful Acts and Disgorgement Sought by Bankruptcy Trustee
• Insured v. Insured Exclusion Inapplicable to Derivative Suit Brought by Both Insureds and Non-Insureds
• Oregon District Court Interprets I v. I Exclusion Based on Collusive "Rationale" of Exclusion
• Policyholder's "Notice of Circumstances" Found Too General to Satisfy Notice Provisions
• Misrepresentations by Employee of Law Firm Imputed to Firm
• Other Decisions of Note
• Court Denies Motion to Dismiss Based on Prior Litigation and Personal Profit Exclusions and Exhaustion
• In-Court Acknowledgement of Potential Legal Malpractice Claim Supports Denial of Coverage under Professional Liability Policy
• Materiality and Timeliness - Issues of Fact in Insurer’s Rescission Action
• Failure to Prevent Sexual Abuse an “Accident,” Not a “Wrongful Act”
• Excess Carrier Not Required to Pay Defense Costs under Professional Liability Policy

August 2006

• D&O Carriers Ordered to Pay Insureds’ Attorneys Fees in Coverage Dispute
• Silence Regarding Different Renewal Terms May Constitute Fraudulent Concealment by Insurer under
• Ohio Court of Appeals: Issue of Fact Precludes Summary Judgment on Rescission Claim
• Court Refuses to Strike Affirmative Defenses of Insurer
• “Defense Costs within Limits” Provision in Law Enforcement Liability Policy Held Invalid under Louisiana Law
• State Appellate Court Limits Discovery from Insurer
• Mary E. Borja Becomes Partner
• Failure to Explain Disciplinary Actions on Application Is Material Misrepresentation
• Enron Court Approves Excess Carriers' Interpleader of Remaining Policy Proceeds
• No Coverage for Fees and Costs Due to Loss of Contract Action
• Other Decisions of Note
• Breach of Contract Arising from Negligent Act, Error or Omission May Fall Within Insuring Agreement of Professional Liability Policy
• Amounts Awarded Against Former Trustee Termed "Restitution" and Not Covered by Professional Liability Policy
• Texas Court: Written Notice 11 Months After Suit Is Not "As Soon As Practicable"
• Acts by Directors and Officers Committed outside Insured Capacity
• Claims Not Related, Pennsylvania Court Rules

August 15, 2006

• California Court: All Claims Arise out of Sexual Molestation, So Coverage Barred
• Excess Carrier Has No Obligation for Defense Fees until Primary Policy Exhausted
• Oral Threat Does Not Satisfy Requirement of Written Demand to Constitute “Claim”
• S.D.N.Y.: D&O Insurance Coverage Action a Core Proceeding
• Two Massachusetts Federal Judges Conclude that Insured v. Insured Exclusion Does Not Apply to Claim by Bankruptcy Trustee
• Ohio Bankruptcy Court: D&O Policy Proceeds Are Not the Property of Bankrupt Corporation’s Estate
• Delaware Federal Court Holds that Dishonesty Exclusion Cannot Apply to Securities Claims
• The Death of "Deepening Insolvency" as an Independent Tort? Delaware Chancery Court Rejects the Theory
• Insurer Estopped from Denying Coverage under Lawyer’s Professional Liability Policy
• Lawyer’s Insurer Estopped from Denying Coverage Based on Unreasonable Delay
• Prior Knowledge Exclusion Bars Coverage for Malpractice Claim

July 2006

• Follow the Bouncing Ball: Marketing under the HIPAA Privacy Rule
• Firm Tracking Users of Pharmaceutical Websites Wins Privacy Lawsuit
• Trans-National Employers Must Harmonize Conflicting Privacy Rules
• Contractual Liability Exclusion Not Likely to Apply to Misrepresentations in Issuance of Promissory Notes
• Insurer Not Entitled to Reimbursement of Defense Costs Incurred in Connection with Non-Covered Claims
• Policyholders' Statutory Bad Faith Claims Barred Based on Statute of Limitations
• Court Applies Related Claims Language and Contract Exclusion to Preclude Coverage
• Breach of Oral Promise to Pay Retiring Employees Extra in Stock Repurchase Does Not Constitute an Employment Wrongful Act
• Dishonesty and Profit Exclusions Preclude Coverage for Insured After Criminal Conviction
• Other Decisions of Note
• Court Holds Rescissory Damages Are Uninsurable as a Matter of Law
• Bankruptcy Court Lifts Automatic Stay to Permit Insurer to Prosecute Coverage Litigation
• Costs of Filing Counterclaim and Third-Party Complaint Not Covered

June 2006

• Encryption: Administration Opens The Door To Domestic Regulation As Congress Debates Privacy, Commercial And Security Concerns
• Congress Considers Legislation To Govern Copyright On The Internet
• Copyright Office Opposes Practical Compulsory License For Internet Retransmission Of Copyrighted Broadcast Signals
• No Duty to Defend in Illinois Pending Conclusion of Recission Action
• Ohio District Court Has Jurisdiction Over California Director Insureds
• Prior Acts Date Bars Coverage for Continuing Fraudulent Scheme
• Insured's Failure to Disclose Pending Suit Precluded Coverage for Later Actions
• New York Federal Court Remands Interpleader Action in Tyco Case
• Related Acts Provision Does Not Bar Coverage Despite Similar Suit Prior to Policy
• New York Federal Court Denies Insurer's Motion for a Preliminary Injunction Seeking to Obtain Documents Sought to Evaluate Subrogation Rights
• Agent's E&O Policy Excludes Coverage for Amounts Administratively Ordered Paid As Restitution to Policyholders of Defunct Insurer
• Other Decisions of Note

May 23, 2006

• “Overwhelming Majority” of Internet “Health Seekers” Found Worried
• Improper Stock Option Grants: The Next Wave of D&O Claims?
• Divided Supreme Court Upholds Motorists’ Privacy Rights
• Additional Recent California Privacy Enactments

May 2006

• Each Misrepresentation in Lawsuit Is Not a Separate Claim
• ERISA Claim Based on Same Facts As Securities Class Action Lawsuit Deemed an Interrelated Claim
• Letter Requesting That State Agency Investigate to Prevent Future Harm Is Not Claim for Medical Incident
• Insurers May Not Solely Rely on Allegations of Underlying Complaint to Deny Coverage Under Three Policy Exclusions
• Broker’s Email Sufficient Notice to Trigger Coverage
• Insurer Must Advance Defense Costs Pending Resolution of Coverage Issues
• Policy's Post-Acts Date Bars Coverage
• No Duty to Defend Absent a Claim for Injury Under Policy
• Other Decisions of Note
• Streamlining the Equipment Authorization Procedure: FCC Designates Thirteen Telecommunications Certification Bodies
• FCC Holds Public Forum on Secondary Spectrum Markets
• MCI WorldCom Makes $3.5 Million Payment for Slamming
• Medical Telemetry Service Established
• Notes in the News
• FCC Adopts Broadcast Relocation Further Notice
• FCC Delays C&F Block Reauction to November 26
• Refusal to Renew Policy Is Not Bad Faith

April 2006

• D&O Policy Covers "Continuing Wrongful Acts" Before and After Date of Prior Acts Exclusion
• Other Decisions of Note
• California Appellate Court Confirms That Misrepresentations Made in Connection with Application Support Rescission As to All Insureds
• Court Holds California Statute Precludes Unilateral Rescission Once Insured Files Action Seeking Coverage
• Breach of Contract Not a "Wrongful Act" Under D&O Policy
• Illinois Court Requires Policyholder to Produce Privileged Documents Concerning Pre-Policy Knowledge of Potential Claim
• Existence of Circumstances That May Result in a Claim Constitutes Fact That Must Be Disclosed in Application for Legal Malpractice Insurance

March 22, 2006

• Internet Tax Freedom Act

March 2006

• Three Wiley Rein & Fielding Insurance Attorneys Named to the Partnership
• Disgorgement Not Recoverable Under Professional Liability Policies
• Dishonesty Exclusion Bars Coverage for Embezzlement
• Third Circuit Holds Policyholder Not Entitled to Discovery Regarding Intent and Drafting History of Policy Exclusion
• Delay in Providing Notice of Lawsuit and Default Judgment Precludes Coverage
• Prior Notice, Prior Litigation and Prior Demand Exclusions May Bar Coverage for Company Implicated by Prior Litigation to Which Company Was Not a Party
• I v. I Exclusion Does Not Bar Coverage for ERISA Breach of Fiduciary Duty Suit Where Fund Trustee Was Plaintiff in Underlying Action
• Discovery in Coverage Litigation Stayed Until Prejudice to Policyholder in Underlying Actions Can Be Determined
• District Court Denies Summary Judgment on Late Notice and Fraudulent Conduct Exclusion
• Other Insurance Clause in Company's Employee Endorsement Trumps Other Insurance Clause in the Employee's Individual Policy
• Illinois Court Requires Policyholder to Produce Privileged Documents Bearing on Prior Knowledge Exclusion
• Court Finds That Policy Does Not Cover Claims Against Directors Serving on Acquired Company's Board
• Professional Services Exclusion Bars Coverage for Claims Arising Out of Advertising and Public Relations Activities
• Other Decisions of Note
• Other Recent Decisions
• Delaware Supreme Court Affirms Dismissal of Derivative Action Alleging Directors Improperly Failed to Stop or Sanction Corporate CEO’s Alleged Sexual Misconduct
• Profit or Advantage Exclusion in Nonprofit Policy Bars Coverage for Claim Arising out of Overcharges
• D&O Insurance Policy Must Be Produced in Securities Litigation Despite the PSLRA’s Prohibition on Discovery While Motion to Dismiss Is Pending
• No Prejudice Required to Bar Claim for Late Notice under Claims-Made Policy; Even Mistaken Misrepresentations in Policy Application Can Void Coverage under Illinois Law
• Claim for Violation of California Securities Statute Is Uninsurable under D&O Policy
• Suit to Recover Value of Shares Allegedly Acquired by Defendant Through Misrepresentations Does Not Give Rise to a “Loss” under D&O Policy

February 2006

• Notice to Broker Does Not Comply with Policy Terms
• Contiguous Coverage Does Not Excuse Late Notice
• Management Liability Policy Proceeds Are Property of the Debtor Estate, But Insurer Can Advance Defense Costs
• Insurer’s Rescission of Policy Renders Arbitration Provision Unenforceable
• Negligent Publication Limited to Tort Claims Like Defamation and Misappropriation
• Appellate Court Affirms Dismissal of Insurer’s Rescission Claim Because of Failure to Establish Condition Precedent and Failure to Demonstrate Reliance
• Tardy Notice Bars Coverage for Bank
• Other Decisions of Note
• No Coverage under Physician’s Professional Liability Policy for Employees’ Sexual Harassment Claims
• Tenth Circuit Finds No Coverage for Collusive Settlement
• Delay Causes Insurer to Be Estopped from Disclaiming Coverage for Legal Malpractice Claim under N.Y. Law
• S.D.N.Y. Invokes Abstention Doctrine to Dismiss Insurer’s Declaratory Judgment Action
• Massachusetts High Court Holds D&O Insurer Had No Duty to Defend or Indemnify Equitable Action
• Excess Insurer Can Assert Legal Malpractice Subrogation Claims
• Malpractice Insurer Entitled to Rescission of Policy Based on Lawyer’s Fraud
• Letter Threatening Malpractice Action Received before Inception of Policy Bars Coverage under Claims-Made Policy
• "Insolvency Exclusion" Bars Coverage for Suits Alleging Misrepresentations Regarding Companies’ Financial Health

January 2006

• Appellate Court Rules Suit Concerning Corporate Spin-Off Is Not a “Securities Claim”
• Court Finds Losses From Several Arbitrations Are Not Subject to One Per Claim Limit Under “Related Claims” Clause
• Liability Insurer Must Share Equally with D&O Insurer in Defense of Mutual Policyholder
• Bad Faith Settlement Claim Rebutted Where Policyholder Had Good Defenses and Insurer Promptly Settled
• Notice-Prejudice Rule Does Not Apply to Claims-Made and Reported Policies in California
• Insured’s Failure to Disclose Knowledge of Breach of Professional Duty Precludes Coverage
• No Duty to Defend When Remaining Claims Allege Only Legal Malpractice