Are you active in the M&A space or are you considering a merger or acquisition in 2022? Given that litigation often follows a surge in M&A activity as we have seen in 2021, beware of a “bump-up” exclusion that may be contained in your D & O insurance policies and which insurers may cite as a basis to deny claims in the M&A space. In this Law 360 article, Cohen Ziffer Frenchman & McKenna Chair Robin Cohen and partner Orrie Levy discuss four recent cases where judges grappled with the scope and applicability of the bump-up exclusion.
Learn how these recent cases have helped inform the scope of this exclusion and offer guidance as to certain themes and considerations that make the exclusion more or less likely to apply. Companies should carefully consider their particular policy language and the nature of the M&A transactions they are engaged in or are contemplating in the context of these themes.