For more information, reach out to Tom at tbreen@moundcotton.com.

[button] Read More[/button] 10-24-24_Law360-T. Breen

He noted that coverage for other charges often brought by the SEC — unjust enrichment, disgorgement — varies more often, and in the competitive D&O marketplace, insurers may contemplate changes to their policies after evaluating how risks have changed because of the courts’ decisions. “The insurance industry is always attempting to accommodate an insured’s best interest as best they can, especially in the underwriting stage,” he told Law360. “It’s certainly possible that the insurance industry will be looking to make some adjustments here and there, in this instance, to protect the insureds in these SEC enforcement actions in federal court.”

Breen said specialty line insurers are familiar with federal courts and their rules of statutory interpretation, which offers some predictability. “Predictability is good in the sense that you’re not stuck with trying to understand why a federal agency came up with a permissible interpretation, as opposed to what is the correct statutory interpretation of a statute,” he said.”

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“She said the liability standards for hospitals remain the same, based on what they knew about the allegations and how they responded. However, the liability exposure and general sentiment toward healthcare systems has changed as a result of these suits,” she told Law360. The financial stakes are high, she said, as shown by a massive jury award this spring against a subsidiary of��.

Institutions will likely face greater scrutiny even in cases of single-claimant allegations, as reflected in the recent UHS case, which resulted in a $535 million award. A hospital’s liability depends on the level of knowledge the institution had about the employee’s history with sexual abuse/assault claims and the actions taken after learning of the claims.”

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Tom noted that “it was an easy conclusion for the court to find that the settlement represented…inadequate consideration, which of course falls right into the wording of the bump-up clause, which talks about a settlement representing an amount by which the price or consideration is effectively increased, which is what this was.” He said that “the only appealable issue would appear to be whether the settlement represented an increase in consideration.”

Bite-Sized Business Law is a podcast discussing the most compelling business law issues of the moment with host Amy Martella, the Executive Director of the Corporate Law Center at Fordham University School of Law. It tackles big issues in small doses through interviews with corporate attorneys, industry experts, public figures, and business law scholars.

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The program is designed for in-house and outside counsel and will review important professional responsibility issues that affect corporate counsel daily. Topics include: the handling of privileged and inadvertently received information, distinguishing between hard bargaining and extortion in dispute settlements, managing conflicts of interest in joint representation of corporations and their employees, and the ethics involved in witness preparation.

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“NotPetya was massive…It was a virtual cyber nuclear attack.”

In 2021, the lower court agreed with Merck, finding that the Hostile or Warlike Act exclusion applied only to “traditional forms of warfare,” and therefore did not apply to the NotPetya cyberattack. A three-judge panel is now considering the interlocutory appeal submitted by the insurers. The decision will be significant to the insurance industry with respect to the applicability of a Hostile or Warlike Act exclusion to the ever-evolving forms of modern warfare.

Phil represented Zurich American Insurance Company in a suit brought against Zurich by Mondelez International Inc., another company that was impacted by NotPetya. That matter was settled shortly before closing arguments after two weeks of trial in the Circuit Court of Cook County, Illinois.

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