Backdating claim director face insurers officer
Of course, given the broader economic troubles, there also has been an increase in the number of litigation matters being pursued in bankruptcy courts.The availability of insurance coverage for these claims will be an important— and likely highly contested—issue as these cases go forward and settlements are negotiated.Although some cases may involve insider trading, obvious misrepresentations, or similar misconduct, many more are likely to involve disputed evidence about what the corporate defendant knew or should have known about the risks and value of the mortgagerelated investments.Given the speed with which the subprime mortgage situation deteriorated, defendants may be able to credibly disclaim any actual fraud in connection with their representations, thereby preserving coverage.Many of these issues will likely be the same as the ones that have occurred in connection with prior types of securities litigation, including the options-backdating lawsuits and suits arising out of the savings and loan crisis.Their resolution, however, may be different in this context. D&O and E&O policies typically exclude from coverage liability based on fraud, criminal acts, or intentional misconduct by the insureds.It may therefore be more difficult for insurers to disclaim coverage on the grounds of intentional misconduct, at least in securities cases.In connection with a number of options backdating cases, insurers asserted that they had the right to rescind their policies based on misrepresentations made in the policyholders' insurance applications.
Many of the claims brought against professional services firms, corporate defendants, or individual officers and directors relating to subprime losses generally should fall within the scope of the defendants' directors and officers (D&O) or errors and omissions (E&O) policies.Though losses related to subprime claims generally fall within the scope of the D&O or E&O policies, that does not necessarily mean that insurers will step up to pay all such losses.Insurers can be expected to raise a variety of defenses and obstacles to coverage, including the application of certain policy exclusions.D&O policies cover directors and officers of a company for liability arising out of any alleged wrongful acts they commit in carrying out their corporate responsibilities.
The policies also cover the company for defending and indemnifying the directors and officers against such liability.
Defendants may get some help in this respect from the courts.