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Lowenstein Sandler LLP

Lynda A. Bennett

Lynda A. Bennett

Partner
Chair, Insurance Recovery Group; Member, Executive Board

Lowenstein Sandler LLP
New York, U.S.A.

tel: 973.597.6338
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Local Time: Sun. 00:34

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Corporate policyholders rely on Lynda to aggressively litigate, negotiate, and resolve complicated disputes with insurers. To date, she has secured hundreds of millions of dollars in insurance recoveries for her clients.

With more than 25 years of commercial litigation experience, Lynda understands that it is generally not in the best interests of corporate policyholders to engage in protracted and costly litigation, especially when doing so may disrupt business and lead to unwelcome public attention. Her goal is to assess and resolve disputes in a manner that achieves successful outcomes for her clients while minimizing interruptions to business as usual. However, if litigation becomes necessary, she has a keen sense of strategy and will exert maximum leverage to resolve claims as quickly as possible.

Lynda has obtained significant recoveries for clients in environmental, asbestos, construction defect, mass tort, product liability, D&O, and professional liability cases. She also counsels clients with respect to contractual insurance requirements, new insurance products (such as cyber insurance), innovative risk management tools, and insurance program assessment. Working with the firm's transactional lawyers, Lynda regularly advises strategic acquirers and private equity funds regarding insurance coverage issues that arise in acquisition and investment transactions and she has a deep network in the reps and warranties insurance space that is an asset for any deal.

Lynda has chaired the Insurance Recovery group since 2011 and is a member of the firm's Executive Board and Compensation Committee. She previously served on the firm's Operating Committee and Recruiting Committee.

Lynda is strongly committed to advancing the role of women in the legal profession. She is a founder of the firm's Women’s Initiative Network, is active in legal industry women's groups, and serves as a board member and past president of the New Jersey Women Lawyers Association. She is also an active participant in a firmwide initiative to help junior attorneys develop their networking, business development, and branding skills.

Bar Admissions

    New York
    New Jersey

Education

Valparaiso University School of Law (J.D. 1994), magna cum laude; Executive Editor, Valparaiso Law Review
Susquehanna University (B.A. 1991), cum laude
Areas of Practice
Professional Career

Significant Accomplishments

Represent Mist Pharmaceuticals, LLC in an ongoing coverage litigation against Berkley Insurance Company (Berkley). We secured partial summary judgment reestablishing Berkley’s duty to defend Mist in an investor lawsuit pending in Delaware. Mist was awarded the full amount of the firm’s litigation fees and costs.

Achieved trial and appellate court victories in New York state court for Sterling Infosystems,Inc., a provider of background checks and consumer reports. As a result of these victories, Sterling's professional liability insurer has to cover Sterling, up to its full $5 million policy limit, for several putative class action lawsuits alleging violations of the Fair Credit Reporting Act. In addition, the insurer was ordered to reimburse Sterling for the attorneys' fees and expenses incurred for the coverage litigation.

Represented a real estate developer who purchased eight tracts of land from Consolidated Rail Corporation. Shortly after the real estate transaction closed, the developer's title to the properties was challenged by the municipality and several public interest groups. Our Insurance Recovery group secured the insurer's defense obligation. In addition, an appellate court affirmed a $1.6M fee award for past defense costs, representing more than 95 percent of the requested fees. The appellate court also granted our cross-appeal on the right to recover coverage litigation fees and costs and the right to pursue pre-judgment interest.

Acted as coverage counsel in a large construction defect litigation involving a multimillion-dollar waterfront development in New Jersey, securing a combined eight-figure insurance recovery from a variety of insurers.

Represented a large manufacturer in connection with two environmental claims under a pollution legal liability insurance policy.

Represented a health care company to resolve a dispute with its employment practices insurer and the insurer's "panel" defense counsel. The dispute involved tripartite relationship conflict issues, bad faith, and a "noncooperation" defense asserted by the insurer.

Represented a developer in connection with a multimillion-dollar title insurance dispute, securing partial summary judgment on the duty to defend and continuing to pursue indemnity coverage, bad faith, and consumer fraud claims.

Acts as coverage counsel for several manufacturing and supply companies, providing litigation and counseling assistance regarding claims disputed by various insurers that sold insurance policies to the companies. Also provides counseling advice with respect to managing insurance and indemnity risks in master services and specific project contracts.

Represented a chemical supply company in connection with insurance coverage for nationwide toxic tort litigation. Secured summary judgment and declaratory relief that resulted in 100 percent defense and indemnity coverage for claims.

Speaking Engagements

Continuing our support for women in the law, we are proud to be a Diamond Sponsor of the 2017 Women, Influence & Power in Law Conference (WIPL). WIPL's objective is to accelerate the empowerment of women in law departments and law firms while bringing together female power players within the legal industry. Three Lowenstein partners will be leading panels at this year's conference. On October 11, Vanessa Ignacio will moderate the panel "Trademark Audits: Protecting Value & Innovation for Your Brands." On October 12, Lynda Bennett will moderate the headline panel "How Leading GC's are Managing Risk, Engaging Stakeholders and Expanding Influence," and Cathy Serafin will moderate "Developing a Healthy Appetite for Risk." To learn more about the WIPL conference, click here.

Lynda Bennett will co-present the webinar "A Really Interesting & Practical Discussion About Cyberinsurance …. No, Seriously" with representatives from Aon and Stroz Frieberg, an Aon Company. The speakers will provide an overview of cyberinsurance from a legal perspective for venture backed startups, covering topics including what stage to consider cyberinsurance, how much coverage startups need, key items to look and negotiate for in insurance policies, and what happens with cyberinsurance when there is a breach.

In a world where new cyber threats emerge day after day, many businesses take (potentially false) comfort in the protection they have secured through the purchase of a dedicated cyber insurance policy.

In this program, panelists from Lowenstein Sandler and Marsh USA will discuss five common misconceptions surrounding insurance coverage for cyber risks. The panel also will provide insight into the current state of the insurance market and how insurers are trying to keep pace with the ever-evolving risk exposures created by the non-stop advancement of technology and the non-stop activities of cyber criminals.

For more information, email [email protected]

Lowenstein's Zarema A. Jaramillo introduces opening keynote speaker Valerie Jarrett, former Senior Advisor to the Obama Administration, and Lynda A. Bennett and Mary J. Hildebrand are panel moderators at the Women, Influence & Power in Law conference. 

October 4, 2018

9:15 a.m.: Opening Keynote: Fireside Chat | Staying Nimble, Taking Risks, and Empowering Women to Lead With Authenticity and Confidence

  • Introduction of keynote speaker: Zarema A. Jaramillo, Partner, Lowenstein Sandler LLP
  • Keynote speaker: Valerie Jarrett, former Senior Advisor, Obama Administration

Empathy, intuition, and collaboration are the qualities people are looking for in their leaders today. In this session, hear from our keynote speaker on how she has taken risks to breakthrough gender bias with confidence, authenticity, and effectiveness in her professional journey.

11 a.m.-12 p.m.: GDPR: Assessing Your Organizational Competence and Risk in a Data-Driven World 

  • Moderator: Mary J. Hildebrand, Partner; Founder and Chair, Privacy & Cybersecurity, Lowenstein Sandler LLP
  • Panelists:
    • Li Reilly, Vice President & Deputy General Counsel, Fareportal
    • Ilona Levine, Senior Corporate Counsel, Privacy, Data Protection, Cybersecurity and Compliance, OVH US
    • Jo Ann Lengua Davaris, Chief Privacy Officer, Mercer

The implementation of GDPR–and the potential for regulatory enforcement actions, private causes of action and legal challenges from various quarters–exemplifies the uncertainty that permeates the privacy and cybersecurity world. How can you manage your legal, compliance, and business risks to achieve the best outcome for your organization? This panel will discuss the practical implications of managing against the new organizational requirements, such as accountability measures, breach notification requirements, data subject rights, and processing system assessments.

October 5, 2018

10-11 a.m.: How to Evaluate Exposure to Personal Liability Arising from Recent Enforcement Actions Against Corporate Counsel

  • Moderator: Lynda A. Bennett, Partner; Chair, Insurance Recovery Group, Lowenstein Sandler LLP
  • Panelists:
    • Patricia Barbieri, Senior Vice President, General Counsel and Secretary, Daiichi Sankyo, Inc.
    • Lynn Feldman, EVP and General Counsel, Clear Channel Outdoor
    • Shirin Saks, Assistant General Counsel, Litigation and Employment, Dun & Bradstreet

Corporate counsels are an organization's ethics watchdogs, yet they are often asked to give strategic business advice. This can put in-house lawyers in awkward positions, jeopardize attorney-client privilege, and potentially expose the company and its leaders to liability. This session will provide an ethical framework and best practices to help navigate this dual role, and focus on how to protect corporate counsel and other executives against potential liability risks through insurance coverage and other innovative risk management techniques.

Lynda A. Bennett moderates and speaks on a New Jersey Institute for Continuing Legal Education (NJICLE) webinar on cyber insurance.

In a world where new cyber threats emerge daily, many businesses take (potentially false) comfort in the protection they have secured through the purchase of a dedicated cyber insurance policy.

At this all-new webinar, panelists will discuss five common misconceptions surrounding insurance coverage for cyber risks. The panel also will provide insight into the current state of the insurance market and how insurers are trying to keep pace with the ever-evolving risk exposures created by the non-stop advancement of technology and the non-stop activities of cyber criminals.

Moderator/Panelist: Lynda A. Bennett, Partner, Insurance Recovery, Lowenstein Sandler LLP

Panelists:

  • Jonathan Kurens, Senior Vice President, Marsh USA Inc.
  • Tamara Snowdon, Senior Vice President, Marsh USA Inc.; FINPRO, Cyber Center of Excellence

 

Join us for our 4th Annual Cyber Day. This half-day program features sessions led by Lowenstein lawyers and other industry leaders who will discuss how companies can navigate cybersecurity, blockchain, and data privacy issues as well as the cyber insurance market in order to operate in a post-GDPR business landscape.

Topics include:

  • Cyber Risks: Where to Find Coverage and How to Maximize Recovery for Cyber Claims 
  • A Global Perspective: Status Report on the Impact of GDPR and What You Need to Know About the Evolving U.S., Federal, and State Data Privacy Laws
  • Government Investigations: How to Prepare and What to Do
  • Beyond Bitcoin: An Introduction to Blockchain

Lowenstein speakers include: 

The program runs 7:30 a.m.-2 p.m. Program location: Lowenstein Sandler LLP, One Lowenstein Drive, Roseland, New Jersey 07068; 973.597.2500. CLE credit available.

The New Jersey Attorney General and NJDEP Commissioner have announced a “new day” in the state’s effort to recover natural resource damages. Attorney General Grewal stated, “We are going to hold polluters accountable – no matter how big, no matter how powerful, no matter how long they’ve been getting away with it. And we’re sending a message to every company across the state: if you pollute our natural resources, we are going to make you pay.”

Join us for a program discussing:

  • An overview of the legal and technical issues that form the basis of a natural resource damage claim
  • Lessons from one of the biggest settlements achieved to date on such a claim from the current and former state representatives who oversaw that settlement
  • Perspectives from the Attorney General’s office
  • The availability of insurance coverage for such claims

We will also address certain ethical issues that must be considered in defending a natural resource damage claim, including director and officer liability and the potential for conflicts, and managing expectations in the face of high profile, high stakes litigation.

Panelists:

  • David Apy, Assistant Attorney General in Charge, Environmental Practice Group, Office of the Attorney General, Division of Law
  • Lynda A. Bennett, Partner; Chair, Insurance Recovery Group, Lowenstein Sandler LLP
  • Frank Piccininni, Senior Attorney and Account Executive, SterlingRisk Environmental and Professional Services
  • Christopher Porrino, Former Attorney General of New Jersey; Partner; Chair, Litigation Department, Lowenstein Sandler LLP
  • Richard F. Ricci, Partner; Chair, Environmental Law & Litigation, Lowenstein Sandler LLP
  • Ken Siet, Vice President and Principal-in-Charge of TRC’s Engineering, Consulting and Remediation (ECR) Mid-Atlantic Region

Location: Lowenstein Sandler, One Lowenstein Drive, Roseland, New Jersey 07068; 973.597.2500

To register: Email [email protected]

 

Lynda A. Bennett joins a panel to speak about 2019 Audits and Initiatives at the Greater New York Hospital Association's Cyber Insurance Webinar. 

GNYGA and the Healthcare Association of New York State will co-host a webinar featuring representatives from Livanta, New York State's Quality Improvement Organization (QIO). Livanta representatives will discuss their 2019 audit focus, Hospital-Issued Notice of Non-coverage, and best practices in compliance.

The webinar takes place at 11 a.m.-12:30 p.m. on March 5, 2019. 

Lowenstein's Zarema A. Jaramillo introduces opening keynote speaker Attorney General Loretta Lynch, former U.S. Attorney General, and Lynda A. Bennett and Doreen M. Edelman are panel moderators at the Women, Influence & Power in Law Conference.

Thursday, October 17, 2019

9:15 a.m.: Opening Keynote: A Conversation with Attorney General Loretta Lynch

Introduction of Keynote Speaker: Zarema A. Jaramillo, Partner, Lowenstein Sandler LLP

Keynote Speaker: Attorney General Loretta Lynch, former U.S. Attorney General

Attorney General Loretta Lynch shares her journey to become the first female African American Attorney General and how businesses can navigate and thrive in a changing global workforce.

1:30-2:30 p.m.: IoT Liability Issues

Moderator: Lynda A. Bennett, Partner, Lowenstein Sandler LLP

Panelists:

  • Carolyn McNerney, Senior Counsel, LG Electronics USA
  • Tamara Snowdon, Esq. CIPP/US, Senior Vice President, Cyber Practice, Marsh JLT Specialty, Marsh USA Inc.
  • Patti Sunar, Assistant General Counsel, Litigation, Verizon

The connectivity allowed by the Internet of Things (IoT) may make our personal and professional lives much easier, but for liability attorneys, it raises some red flags. Plus, with a lack of guidance from federal regulators like the FTC and the FCC, there are often more questions than answers. If a data breach occurs at a business, who is liable? Does liability fall on the business, the manufacturer of the device, or the creator of the software? More cases like this are beginning to arise, and this session will examine liability concerns in the age of connectivity. Topics include:

  • Understanding the differences for the legal department between IoT and other recent tech advancements
  • Review Current guidelines around IoT liability and potential legislation
  • Strategies for protecting your organization

Friday, October 18, 2019

11:20 AM - 12:20 PM: Tariffs, Trade Wars & the Global Supply Chain

Moderator: Doreen M. Edelman, Partner, Lowenstein Sandler LLP

Panelists:

  • Karen Killeen, Vice President and Deputy General Counsel, BASF Corporation
  • Jennifer Morales, Senior Counsel – Litigation, GE Aviation

The recent rise in tariffs affecting global trade is having a huge impact on both local and international businesses–not to mention, there’s been discussion of a renegotiation of NAFTA and proposal of pulling out of the WTO. Other countries have begun to retaliate on the high tariffs imposed by the United States with counter-tariffs on American goods, thus creating a “trade war.” Many local corporations are being affected as the cost continues to rise, which also impacts the cost to the consumer. So what are the options for companies to keep the costs down? Aside from asking for exemptions on certain tariffs, what can GCs and in-house counsel do at this time? And what are the legal implications of these new sanctions for companies with overseas operations? This session will explore how trade wars are impacting the decisions that GCs must make for their businesses, and we will also discuss potential solutions for organizations with global operations.

Washington Marriott Wardman Park
, 2660 Woodley Rd NW, Washington, D.C.

In-house lawyers in industries far beyond the tech world–such as financial services, pharmaceuticals, insurance, and consumer electronics, to name only a few–need practical guidance on the many ways that cybersecurity and privacy issues can affect all stages of business, from the valuation of data as an asset to the allocation of risk.

In response to this need, Lowenstein Sandler has expanded our annual program to include an even deeper dive into cybersecurity issues of special interest to GCs, CPOs, and CIOs. Our interdisciplinary group of privacy and data security specialists has teamed with in-house counsel to develop programming aimed to help corporations and executives navigate the potential risks, regulations, and benefits at stake, as well as best practices to address these issues.

Topics include:

  • Data Protection Law Developments: A Year in Review and What to Expect in 2020
  • Artificial Intelligence: Preparing for the Future of Business
  • Cyber Insurance: What It Covers, Why You Need It, and How To Get It
  • Blockchain Promises Solutions Across Industries, But Will it Deliver?
  • Telehealth and Telemedicine: The Future of Health care?
  • Biometric Data: From Finger Scans to Facial Recognition, a Deeper Dive into Artificial Intelligence
  • State Privacy Laws: A Deeper Dive into New and Amended U.S. State Privacy and Cybersecurity Laws

Program time: 7:30 a.m.-2:15 p.m. 

Program location: Lowenstein Sandler LLP, One Lowenstein Drive, Roseland, New Jersey 07068; 973.597.2500. 

CLE credit available.

Wi-Fi access and conference space will be available to take phone calls and stay connected to your workday.

Lynda A. Bennett joins a panel addressing disaster preparedness for lawyers.

All lawyers, whether solo practitioners or members of larger firms, need to be prepared to survive the unexpected disaster. Whether it is a physical catastrophe, like a hurricane or a burst of a pipe in your office space, or a data breach jeopardizing confidential information and client files, there are time-proven procedures and safeguards that you can put in place to minimize the effect of the disaster and insure that your business is up and running quickly.

This luncheon webinar will be led by The Honorable Ronald J. Hedges, former US Magistrate Judge. Judge Hedges will be joined by Lynda Bennett, Esq., a private practice attorney who focuses her practice on insurance recovery and Carrie Parikh, Esq., a seasoned data and privacy professional with the State Office of Information Technology. Together they will delve into the concerns and practices all lawyers and firms should have in place in the event of a disaster.

Speakers:

  • Lynda A. Bennett, Esq., Partner, Lowenstein Sandler LLP
  • Carrie Parikh, Esq.Chief Operating Officer/Chief Data and Privacy Officer
    Office of Information Technology, State of New Jersey


Professional Associations

New Jersey State Bar Association
  • Member, Insurance Law Section Executive Committee
  • Past Chair, Insurance Law Section
  • Past Chair, Insurance Law Section Newsletter
New Jersey Women Lawyers Association
  • Board Member
  • Strategic Planning Advisor
  • Past President
Continuing Legal Education
  • Frequent lecturer on insurance-related topics
The Leukemia and Lymphoma Society, New Jersey Chapter
  • Board of Trustees
Morris Catholic High School
  • Board of Trustees

Professional Activities and Experience

Accolades
  • Crain's: 2019 Notable Women in Law - New York (Bennett, Fiorica Delgado)
  • Top 100: New Jersey Super Lawyers - Lynda Bennett
  • Top 50 Women: New Jersey Super Lawyers (2019) - Lynda Bennett
  • New Jersey Super Lawyers (2007-2019) - Lynda Bennett
  • Chambers USA: America's Leading Lawyers for Business - (2013-2019) - Bennett
  • American Bar Foundation - Lynda Bennett
  • The Best Lawyers in America - L.Bennett
  • Best 50 Women in Business - NJBIZ - 2016
  • Distinguished Service Award - The New Jersey Institute for Continuing Legal Education - 2014
  • New Jersey Women Lawyers Association Women's Initiative and Leaders in Law (WILL) Platinum Award - New Jersey Women Lawyers Association - 2013
  • Professional Lawyer of the Year Award - New Jersey Commission on Professionalism in the Law - 2008

Articles

Advice to Cyber Insurance Buyers: You Are Not Alone
Lowenstein Sandler LLP, May 2017

One of the first steps in the underwriting process requires the company to submit an application to the insurer. The application will seek baseline information about the company’s size, number of records maintained, type of information maintained, security policies and procedures, and disaster planning. The company’s ability to answer those questions with complete and detailed information is critical...

Three Myths Holding Women Back from Career Advancement
Lowenstein Sandler LLP, February 2017

Marketing. Networking. Business Development. Two words and one phrase that most lawyers dread, but accept, as part of the reality of practicing law today. Some embrace the reality and find ways to fit these activities into their busy practices. Many others however, and women in particular, identify barriers that prevent them from pursuing these crucially important career-enhancing activities...

Insurance 101 For Tech Companies
Lowenstein Sandler LLP, January 2017

Insurance 101 For Tech CompaniesBy Lynda A. Bennett and Eric Jesse of Lowenstein Sandler Insurance has a critical role in any tech company, whether it’s a start-up, securing seed money, or pathing toward an IPO or acquisition. Companies should keep in mind that their insurance needs will change and grow throughout that life cycle; therefore, those needs should be evaluated on a regular basis.   The Start-Up Stage...

Additional Articles

As 2017 closes, companies continue to grapple with how to manage and insure the many risks presented by privacy and cyber security issues. Companies are seeing those risks multiply at a dramatic pace as the “internet of things” becomes ubiquitous. Many companies believe they will, or should, be covered for claims related to the internet of things if they have purchased traditional insurance policies and a dedicated cyber policy. However, the availability of coverage for an internet of things claim may not be so clear, especially if careful underwriting and coordination of the relevant insurance policies have not been undertaken. 

When a company is in bankruptcy, insurance policies are a critical, but often overlooked, asset of the estate. For instance, policy proceeds may be significant, and possibly the only, source of recovery for some creditors. For debtors, company executives increasingly need to rely on the protections of directors and officers (D&O) insurance to defend and resolve creditors’ claims that their mismanagement drove the company into bankruptcy.


Unlocking the benefits and protections of insurance often presents challenges. Insurers do not just ‘open their checkbook,’ and they often insist on strict compliance with policy terms and conditions, particularly if doing so allows them to deny coverage. Therefore, bankruptcy practitioners must carefully navigate the road to coverage, avoiding pitfalls along the way that could lead to a claim denial. While there are many potential pitfalls, there are four common ones for every bankruptcy lawyer to be aware of: 1) the assignability of insurance proceeds; 2) the impact of a broad release provided to directors and/or officers; 3) the characterization of allegations against an insured and settlement payments, and 4) judicial limitations on executives’ access to defense coverage.


This article was originally published in the February 2019 issue of New Jersey Lawyer magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.

“Titanic.” We’ve all seen it and enjoyed watching the ill-fated love affair between Rose and Jack develop during the course of an over-length movie. We watched Rose grapple with the tough decisions between living up to others’ expectations and following her heart. We rooted Rose on as she decided to spurn her high-society fiancé and defy her mother to be with her true love. And, in a true Hollywood twist of fate (spoiler alert!), we watched in horror as Rose’s happiness is shattered when Jack slowly sinks to the bottom of the ocean.


However, the most compelling scene of the movie takes place at the very end, when the camera pans Rose’s room and we see that, after she survived the Titanic and lost the love of her life, Rose went on to live a full life. She married and had children, who gave her beautiful grandchildren. She learned to ride a horse even though Jack was not there to teach her. And Rose likely refined her spitting technique to be truly award worthy (and note, we did not say “like a man”). In other words, Rose experienced a number of highs and lows in her life. She faced many difficult decisions and things didn’t always work out the way she expected or wanted, but she kept moving forward.

Recently, we have seen an uptick in coverage disputes with insurers that are centered on the insurer’s defense obligation. Many policyholders do not understand their rights with respect to the selection of defense counsel, the hourly rates charged by defense counsel, whether insurer litigation management guidelines are enforceable, and the scope of available defense coverage for a “mixed” claim. This article addresses some of the common misconceptions held by policyholders and provides practical tips about how to engage with insurers on these issues.


Myth 1: The insurer always gets to select defense counsel


Many policyholders mistakenly believe that if a claim is covered by an insurance policy, then the insurer has the exclusive right to choose the lawyers who will defend the case. However, that is not always true.


As a preliminary matter, only certain types of policies contain a “panel counsel” provision that expressly and contractually gives the insurer the right to choose counsel.


When a policy does not contain an express panel counsel provision, selection of counsel is a point that can, and should, be negotiated with the insurer. Moreover, even when a panel counsel provision exists in the policy, insurers may agree to approve the use of nonpanel counsel when policyholders agree to certain parameters with respect to the handling of the defense.


In addition, when an insurer agrees to provide a defense subject to a reservation of rights – whether or not there is a panel counsel provision in play – courts have determined that the policyholder has the legal right to select conflict-free and independent counsel. In fact, some jurisdictions have established a policyholder’s right to independent counsel by statute.


Policyholders also should be aware that they can avoid the selection of counsel dispute at the policy placement stage by requesting an endorsement to preapprove law firms to serve as defense counsel. However, this approach may come with some unexpected negative consequences if the policyholder needs the option of choosing different defense counsel depending on the nature of the claim asserted.


Myth 2: The insurer has the unilateral right to impose panel counsel rates


In circumstances where the insurer has denied coverage or has reserved rights and nonpanel counsel is defending the claim, another common area of dispute involves whether the insurer can take the position that it will reimburse defense costs only at the rates that the insurer pays its panel counsel. While there is not extensive case law on this issue, courts generally reject the notion that insurers can establish a bright-line rule based on the volume discount rates that they have negotiated with their lawyers. Instead, courts seek to determine the prevailing market rate that is charged by capable counsel in the geographic area where the matter is pending while considering the level of complexities and magnitude of risk exposures faced in the underlying action.


The policyholder can, and should, work closely with experienced coverage counsel and their brokers to develop the data points needed to challenge panel rates and secure reimbursement at reasonable rate structures.


Myth 3: The insurer can impose litigation management guidelines on defense counsel


Once the horse trading on selection of defense counsel has ended, policyholders and their counsel next must confront the insurer’s attempt to unilaterally impose litigation management guidelines that place material restrictions on what the insurer will agree to pay for and what will not be reimbursed to defend the case. Oftentimes, the guidelines are not a provision of the insurance policy that was purchased and were not agreed to by the policyholder. Nevertheless, the insurer contends the guidelines now govern the defense.


While the general idea behind the guidelines is a laudable one — that is, to put mechanisms in place to control litigation costs and expenses — the reality is that the guidelines are often draconian in nature and can be particularly unworkable in the context of a large, complex litigation.


Policyholders should understand that the guidelines can, and should, be challenged with insurers. Indeed, some courts have determined that insurer litigation management guidelines are unenforceable because they are not agreed-upon terms of the policy and they impede a lawyer’s ability to zealously defend his or her client. Other jurisdictions have issued ethics opinions warning defense lawyers against following the guidelines to the extent that doing so would impede the lawyer’s professional judgment.


In many instances, policyholders and insurers can work together to develop a collaborative and agreed-upon approach to defend the case, and the guidelines can be customized to address the specifics of the underlying action. Clear, open and regular communications about these issues are the key to successfully managing them.


Myth 4: The insurer can do simple math to reduce its defense


obligation for a ‘mixed’ claim Another issue that regularly arises with respect to the scope of the insurer’s defense obligation relates to a “mixed” claim. Think of the all-too-common “everything and the kitchen sink” complaint that includes 12 different legal causes of action and is asserted against a laundry list of defendants.


Some of the legal causes of action and some of the defendants are potentially covered by the insurance policy, while other causes of action and defendants are not. And even though the complaint is a “mishmash,” what is really driving the legal dispute is the potentially covered claim or claims asserted against the potentially covered policyholder or policyholders.


Oftentimes, the insurer attempts to artificially reduce its defense obligation by engaging “simple” math; for example, since only four of the 12 counts are potentially covered, the insurer will agree to pay one-third of the defense costs. However, that is not how the insurer’s defense obligation is established, nor is that how allocation law works. As a preliminary matter, the insurer’s duty to defend is broader than its duty to indemnify. Nearly every jurisdiction across the country recognizes that if there is one potentially covered claim alleged in the complaint, then the insurer has an obligation to defend the entire action.


Moreover, many courts have held that if defense costs do “double duty” — that is, provide a benefit for both the covered and uncovered claims/defendants — then the insurer must pay those defense costs.


In other words, “simple math” does not rule when a mixed claim is presented. A careful analysis of the facts and circumstances of the underlying action is required, and policyholders must be armed with the appropriate legal authority to reject the insurer’s attempt to artificially minimize its defense coverage obligation by tallying the covered and uncovered counts/defendants.


Conclusion


Defense coverage is a critical aspect of any company’s risk management program.


However, buying insurance policies and making claims are not enough to ensure that the company will be fully, fairly and immediately defended by its insurer when a complaint is served. In order to navigate these murky waters, policyholders are well served to engage experienced coverage counsel to negotiate these critical issues early on so that the policyholder and its insurers can then collaboratively focus on the task at hand — defending and resolving the underlying action.


This article originally appeared in August 1, 2019 issue of Business Insurance.

Introduction


Recently, the Delaware Superior Court issued an opinion that has far-reaching consequences for directors’ and officers’ liability (“D&O”) policyholders and insurers.1 


The court held that the definition of “Securities Claim” in a D&O policy includes a shareholder appraisal action. The court also held that prejudgment interest can be covered “Loss” even if the policy does not provide coverage for the loss giving rise to the prejudgment interest, i.e., merger value consideration. Finally, the court held that the policy’s requirement that the insured obtain the insurer’s consent before incurring defense costs (the “Consent Clause”) included an implied prejudice requirement, i.e., a breach is immaterial if it does not prejudice the insurer.  

Background

In March 2016, an affiliate of the private equity firm Vista Equity Partners acquired the formerly publicly traded company Solera Holdings, Inc. (the “Insureds”) for an agreed merger price of $55.85 per share, or approximately $6.5 billion. At the time of the merger, the Insureds had a $10 million primary D&O policy (the “Policy”) and $45 million of excess follow-form policies sold by various insurance companies (the “Insurers”).  

Four days after the merger, several of the Insureds’ previous shareholders (the “Petitioners”) filed an appraisal action (the “Appraisal Action”) in the Delaware Court of Chancery, seeking a merger valuation of $84.65 per share. The Insureds did not notify the Insurers of the Appraisal Action until January 2018, after much of the litigation, including trial, was complete. In April 2018, the Insurers denied coverage for the Appraisal Action. Then, in July 2018, the Chancery Court determined that the fair value of the Petitioners’ shares was $53.95 per share (less than the merger price) and ordered the Insureds to pay the Petitioners approximately $38.4 million in prejudgment interest. The Insureds incurred more than $13 million defending the Appraisal Action.  

Coverage Issues

The issues presented in Solera were threefold: (i) whether the Appraisal Action must allege wrongdoing to qualify as a “Securities Claim” as defined in the Policy; (ii) whether the Policy covered prejudgment interest on the Chancery Court’s determination of the fair value of the Petitioners’ shares, even though the Policy did not cover the value of the shares; and (iii) whether the Insureds’ breach of the Consent Clause, stemming from their delayed notice, caused material prejudice to the Insurers such that coverage for the Insureds’ defense costs was precluded.  

The Court's Analysis, Findings, and Holdings

Regarding the first issue, the Insurers argued that the Appraisal Action was not a “Securities Claim” under the Policy because the definition required an “actual or alleged violation” of a securities law. Specifically, the Insurers contended that “violation” requires wrongdoing and an appraisal action does not require an allegation of wrongdoing. The court, however, relied on long-established rules of insurance contract interpretation and stated that courts must “first seek to determine the parties’ intent from the language of the insurance contract itself.” The court then found that the plain meaning of the undefined term “violation” in the Policy was broader than “wrongdoing” and that the Appraisal Action was inherently an allegation of the Insureds’ violation of the Petitioners’ right to receive the fair value of their shares. Therefore, the court held that the Appraisal Action qualified as a “Securities Claim” under the Policy.  

Next, the court considered whether the prejudgment interest award was a “Loss” as defined in the Policy. The Insurers argued that the interest could not be a “Loss” because the underlying amount on which the interest accrued was not a covered “Loss.” Again, the court looked to the plain meaning of the Policy, which defined “Loss” to include “pre-judgment interest . . . that [the Insureds are] legally obligated to pay.” The court readily held that the Policy covered prejudgment interest because the Policy did not limit “pre-judgment interest” in any way, such as by excluding coverage for interest awarded for an uncovered loss, e.g., the Chancery Court’s determination of the fair value of the Petitioners’ shares. Notwithstanding this finding, the court did not award summary judgment to the Insureds because it noted factual issues remained with respect to whether the Insureds could have mitigated the prejudgment interest incurred and whether the Insureds actually paid all the awarded prejudgment interest.

The last issue before the court was whether the Insureds’ nearly two-year delay in giving notice of the Appraisal Action materially prejudiced the Insurers. Notably, the Insurers did not advance a late notice argument on this summary judgment record because the Policy contained an explicit material prejudice requirement in the notice provision. Therefore, the Insurers sought to bar coverage for the prenotice defense costs by relying on the Consent Clause, which stated that the Insureds could not incur any defense costs without the Insurers’ prior consent (which consent could not be unreasonably delayed or withheld). The Insureds argued that the same material prejudice requirement that applied to the notice provision of the Policy was implied in the Consent Clause. The court agreed that a prejudice requirement must be implied in the Consent Clause to protect policyholders from the harsh result of forfeiture of coverage when an insurer is not actually harmed by delayed notice. However, the court also made clear that policyholders bear the burden of demonstrating lack of prejudice when they have breached the Consent Clause. The court admitted that the Insureds successfully defended the Appraisal Action, but it determined that summary judgment in the Insureds’ favor was premature because factual questions regarding prejudice required additional evidence to determine.  

Key Takeaways

The Solera court’s broad interpretation of “Securities Claim” to include an appraisal action that contains no explicit alleged wrongful conduct is favorable to D&O policyholders but also may lead insurers to modify the definition on future D&O policy forms. Therefore, it is critically important for policyholders to remain diligent in carefully reviewing renewal terms and conditions with qualified coverage counsel. In the same vein, policyholders should be aware of changes being made to the definition of “Loss” to address the court’s determination that prejudgment interest may be covered even if the basis for the interest award is not. Indeed, the Solera opinion includes language that could have been, but was not, used in the Policy to foreclose the Insureds’ ability to recover prejudgment interest. Finally, notwithstanding the court’s favorable finding that a material prejudice requirement applies to the Consent Clause, policyholders are still best served by providing immediate notice of claims in order to avoid the burden of explaining delay and demonstrating that insurers have not been prejudiced by it.


Important Case Update


Recently, the court took the extraordinary step of granting the Insurers’ application for interlocutory appeal to the Delaware Supreme Court. The court reasoned that its holdings that the Appraisal Action qualified as a “Securities Claim” under the Policy and that the Consent Clause implied a prejudice requirement were issues of first impression in Delaware that potentially have “broad[] implications within the insurance industry.” The court also concluded that “other insurers and insureds . . . likely will benefit from interlocutory review.” Whether or not the Delaware Supreme Court grants certification, Solera is a significant case for policyholders across the country to continue to monitor.2


Endnotes


1 Solera Holdings, Inc. v. XL Specialty Ins. Co., 213 A.3d 1249, 2019 WL 3453232, at *1 (Del. Super. Ct. 2019), opinion clarified, No. N18C-08-315 AML CCLD, 2019 WL 4120688 (Del. Super. Ct. Aug. 29, 2019) (Solera).


2 Solera Holdings, Inc. v. XL Specialty Ins. Co., No. N18C-08-315 AML CCLD, 2019 WL 4733431, at *1 (Del. Super. Ct. Sept. 26, 2019).


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