Policyholders’ Heaviest Hitters | Attorneys | New York

Widely recognized and honored by many prominent organizations, our lawyers understand the many nuances of directors and officers and errors and omissions claims. We have earned a reputation for gaining precedent-setting rulings and shifting the landscape of D&O and E&O coverage in favor of policyholders. We’re very sensitive to the high-stakes consequences these cases pose to companies and individuals and advocate vigorously for clients to make certain their insurance does what it’s supposed to do: Financially support the legal efforts to resolve these existential threats without the risk of an underlying trial. Our history of success in this critical area is second to none.

Our team brings extensive experience, a deep well of knowledge, and the ability to forge innovative strategies to help clients secure litigation and settlement funding from their insurance carriers. In collaboration with our clients’ defense attorneys, we understand the importance of prioritizing; we stay vigilant about not letting the insurance drive the defense strategy. Additionally, we closely monitor the ever-evolving regulatory, jurisdictional, and insurance-industry environments, which allow us to stay ahead of any changes in this area before they manifest. Our lawyers also stay abreast of the venues most likely to deliver favorable rulings for our clients and take measures to present D&O and E&O claims in those jurisdictions.

We cultivate and maintain close working relationships with opposing counsel, often enabling us to negotiate favorable terms in D&O and E&O disputes. Yet our lawyers are never hesitant to take a case to trial if the situation warrants, which provides leverage for optimal resolutions often at the early stages of a dispute.

Our Inventive Approach

Strategic Immersion. Increasingly, we partner with our clients’ defense lawyers by working side-by-side to assist with defense strategies and negotiation of the underlying issues in a case. We embrace this collaborative approach because we know we add value and because ultimately it helps us maximize the coverage.

Crafting a Roadmap. When a client turns to us for help navigating a D&O or E&O coverage dispute, we always conduct early-case assessments to analyze all the factors, anticipate strategies insurers’ lawyers are likely to apply, and formulate a comprehensive plan to recover the financing our client needs to dispense the claim and move their company forward.

Uncharted Terrain. Often novel insurance issues emerge in D&O and E&O claims that require original ways of negotiating settlement funding. We have been very successful in advancing new, untested arguments to gain insurance recoveries.

Our Strengths

Our team draws on our decades of collective experience in these types of claims to help clients in a whole host of issues involving such matters as:

  • Choice of counsel
  • Policy exclusions of every stripe
  • Claim and loss definitions
  • Securities coverage
  • Punitive damages
  • Exemplary damages
  • Disgorgement claims
  • Side A policies
  • Side B policies

We have the ability to help clients secure funding for an array of disputes involving a range of allegations, including:

  • Breach of fiduciary duty
  • Corporate wrongdoing
  • SEC violations
  • Employment discrimination
  • Governmental investigations
  • Work environment claims

Experience Highlights

  • Our team obtained summary judgment for Towers Watson and Co., securing access to more than $60 million in insurance coverage for an underlying lawsuit. The ruling was a major victory for policyholders, and reaffirmed that a common “bump-up” exclusion in “D&O” policies does not bar coverage for claims arising from merger transactions.

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  • We convinced an Illinois Appellate Court to overturn a trial court decision, securing defense cost coverage for our clients, subsidiaries of Hilco Inc. The court agreed that the underlying lawsuits alleged wrongful acts in the provision of professional services as contemplated by the policy sufficient to trigger the insurance companies’ duty to defend.

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  • Our team obtained summary judgment for TIAA on a groundbreaking issue by securing coverage for a settlement of a civil disgorgement claim under an E&O policy. Subsequently, we obtained a jury verdict worth approximately $50 million that the Delaware Supreme Court affirmed in all respects.

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  • In a major victory for our client, Pfizer Inc., a Delaware judge ruled in 2019 that the pharmaceutical company’s insurance companies must cover millions Pfizer incurred to settle a shareholder suit. The court held that the insurer could not rely on a number of exclusions in their D&O insurance policies to deny Pfizer coverage.

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Relevant Experience

  • Representation of Verizon Communications Inc. in securing a ruling from the Delaware Superior Court that, as a matter of law, Verizon is entitled to recover its approximately $24 million in defense costs incurred in defending against a securities litigation involving the spinoff of certain of its landline business assets to FairPoint Communications, and may pursue coverage for its $95 million settlement of that litigation. 
  • AR Capital. Represented AR Capital and several of its officers and directors in connection with their claim for $80 million in insurance coverage and indemnity for the defense of class action lawsuits, opt out actions, and several governmental investigations. The underlying suits and investigations stem from a restatement of the financial statements of VEREIT, Inc. for the period during which AR Capital provided management services to VEREIT. The case raises several cutting-edge issues in the area of insurance coverage for directors, officers and other additional insureds under various forms of management liability policies. Among the most important of those is ensuring equality of additional insureds’ access to finite coverage assets where the named insured’s continuing business relationships with the carriers provides insurers with an economic incentive to the favor the interests of that original named insured. 
  • Carlyle Group. Avoiding the need for coverage litigation, our team helped negotiate and secure $175 million in private equity professional liability insurance coverage from 15 different insurance carriers for The Carlyle Group.  This involved two settled investor demands alleging mismanagement, misrepresentations, negligence and breach of contract and duty in connection with Carlyle’s role as portfolio manager of funds invested in oil commodities located in Morocco and Panama. Our lawyers partnered with Carlyle and its defense counsel early in the claim process to support Carlyle’s expedited settlement efforts aimed at mitigating the chance of litigation against Carlyle and any of its directors or officers while ensuring coverage was not compromised. Carlyle finally led the charge in ensuring carriers’ payments are done pursuant to insurance funding agreements that protect Carlyle from subrogation fights, freeing Carlyle to pursue other recoveries for its full losses for investors. 
  • Oracle Corporation. Represented Oracle in a claim for underlying plaintiffs’ attorneys fees awarded as part of a court-approved settlement of a shareholder derivative action. Among other things, the case involved insurer efforts to broadly and incorrectly interpret a policy endorsement as limiting coverage to amounts awarded by a court rather than amounts agreed to in a court-approved settlement, and to treat those costs as falling outside the initial grant of coverage to the individual directors, even though under applicable law they could not be paid by the Corporation. After initial motion practice and two rounds of mediation, the claim was settled on highly favorable terms. 
  • RCS Capital. Represented former directors and officers in connection with a Creditor’s Trust action for breach of fiduciary duty and several class actions arising out of alleged securities violations in connection with $100 million in insurance coverage for defense costs and indemnification. We have been able to avoid litigation with the carriers and secure ongoing advancement of tens of millions in defense costs, as well as over $60 million in settlement payments.

Recognition and Rankings

  • “Insurance Practice Group of the Year” – Law360 (2016 – 2020) 
  • National Tier 2 for Insurance Law: “Best Law Firm” 2021 Edition, published by S. News-Best Lawyers 
  • In 2020, Chambers USA again ranked our team in Band 1 for Insurance: Dispute Resolution: Policyholder in New York. Our group “handles the most complex and high-profile coverage cases and class actions” and is “well known for regularly securing key verdicts at trial and appellate levels for major corporate clients facing significant liability exposure. They have been at the top of the game for a long time and do a great job for clients.” 
  • Our team was also ranked in 2018 and 2019 as a leading insurance litigation group (nationally and in New York) by Chambers USA. 
  • 2020 The Legal 500 ranked our team as “leading lawyers” in Insurance: Advice to Policyholders:
    • Robin Cohen – Hall of Fame
    • Adam Ziffer – Recognized
    • Ken Frenchman – Recommended
    • Keith McKenna – Next Generation Partner 
  • We were also ranked by The Legal 500 in 2018 and 2019. 
  • 2016 The Legal 500 ranked our team as “top tier” for Insurance: advice to policyholders. The publication noted that the . . . insurance recovery practice has “experience across a wide range of insurance issues, including asbestos-related matters, as well as other product liability, environmental, toxic tort cases and D&O matters. The team also has significant regulatory expertise." 
  • “Insurance Litigation Department of the Year” – The New York Law Journal (2017) 
  • Our team ranked “Tier 1” nationally for insurance litigation by Benchmark Litigation in 2018 – 2020. 
  • Numerous individual awards and rankings for Robin Cohen, Adam Ziffer, Ken Frenchman and Keith McKenna.

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