Navigating today’s complex risk environment can be a monumental task. Steve Shappell, Alliant Claims & Legal, spearheads Executive Liability Insights, a monthly review of news, legal developments and information on executive liability, cyber risk, employment practices liability, class action trends and more. 

Table of Contents

DELAWARE SUPREME COURT UPHOLDS POISON PILL REJECTION

The Williams Cos. Inc., et al. v. Wolosky, et al., No. 2020-0707 (Del. Nov. 3, 2021)

 

The Delaware Supreme Court recently affirmed a Court of Chancery decision that enjoined an energy company from adopting a shareholder rights plan, or “poison pill.” 

 

Read More >>

D&O INSURER NEEDN’T COVER COSTS FOR CLAIMS AGAINST INDIVIDUAL INSUREDS NOT BROUGHT AGAINST THEM IN THEIR CAPACITY AS INSUREDS

Calamos Asset Mgmt., Inc. v. Travelers Cas. and Sur. Co. of Am., No. 18-1510 (D. Del. Oct 21, 2021) 

 

This coverage dispute concerned the obligation to pay defense costs and a settlement arising out of an underlying stockholder claim against a company’s directors and officers for breach of fiduciary duty. 

 

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FORMER CEO SEEKS PROPORTIONAL INDEMNIFICATION AFTER PARTIAL VICTORY IN BREACH OF DUTY OF LOYALTY ACTION

Evans v. Avande, Inc., No. 2018-0454-LWW (Del. Ch. Sep. 23, 2021) 

 

In the underlying action, a management consulting company filed litigation against its former CEO alleging he breached his duty of loyalty by engaging in self-interested transactions, authorizing improper expenditures, and failing to maintain proper documentation. 

 

Read More >>

CONNECTICUT FEDERAL COURT REVERSES RULING ON D&O INSURER’S OBLIGATION TO ADVANCE DEFENSE COSTS

Conn. Mun. Elec. Energy Coop. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 3:19cv00839 (D. Conn. Oct. 29, 2021)

 

As discussed in the September 2021 edition of Executive Liability Insights, a Connecticut Federal court recently held that two grand jury indictments did not constitute covered claims under a municipal energy company’s directors and officers liability (“D&O") policy. 

 

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PROFESSIONAL LIABILITY INSURER MUST PAY CLAIM AS COURT REFUSES NARROW INTERPRETATION OF PROFESSIONAL SERVICES

Med. Protective Co. v. Crafton Chiropractic, Inc.; No. 20-00414-KD-B (S.D. Ala. Nov. 1, 2021)

 

In the underlying suit, the estate of a deceased patient who was treated at a chiropractic clinic and subsequently died of breast cancer sued the clinic for, among other things, misrepresentation, negligence in the provision of cancer treatments, and malpractice.

 

Read More >>

TCPA PENALTIES UNINSURABLE UNDER COMMERCIAL UMBRELLA POLICY

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Dish Network, LLC, No. 20-1215 (10th Cir., Nov. 2, 2021)

 

The insured, a satellite television provider, was sued for alleged violations of the Telephone Consumer Protections Act (“TCPA”), which forbids a party from making telephone calls to residential landlines with an artificial or prerecorded voice without the prior consent of the recipient. 

 

Read More >>

ENERGY COMPANY REACHES CLASS SETTLEMENT OVER ALLEGED TCPA VIOLATIONS

Jenkins, et al. v. Nat’l Grid USA Serv. Co., et al., No. 15cv1219 (E.D.N.Y. Nov. 8, 2021)

 

A group of customers recently asked the court for preliminary approval of a $38.5M settlement resolving class allegations that several gas companies violated the Telephone Consumer Protections Act (“TCPA”). 

 

Read More >>

CYBER CORNER

Click to read the following cases:

 

  1. NEW FEDERAL REGULATION IMPOSES CYBERSECURITY INCIDENT REPORTING REQUIREMENTS ON BANKS
  2. “SILENT CYBER” COURT HOLDING COMPLICATES COVERAGE FOR RANSOMWARE ATTACKS

 

Read More >>

EPL CORNER

Click to read the following cases:

 

  1. LATE NOTICE PRECLUDES COVERAGE FOR EEOC CHARGE UNDER EPL POLICY
  2. SETTLEMENT REACHED IN ERISA CLASS ACTION 
  3. RIDE SHARE DRIVERS MUST ARBITRATE EMPLOYEE STATUS CLAIMS

 

Read More >>

SEC CORNER

Click to read the following cases:

 

  1. SEC INKS SETTLEMENT WITH SPAC OVER FRAUD CHARGES
  2. FICC SETTLES WITH SEC OVER RISK MANAGEMENT INADEQUACIES 
  3. ELECTRIC CAR COMPANY TO SETTLE WITH SEC OVER FORMER CEO’S SOCIAL MEDIA ACTIVITY
  4. SEC ENFORCEMENT ACTIONS AGAINST PUBLIC COMPANIES DECLINE IN FY 2021

 

Read More >>

SHAREHOLDER CORNER

Click to view the following:

 

  1. NOVEMBER 2021 SECURITIES CLASS ACTION FILINGS
  2. NOVEMBER 2021 M&A-RELATED SECURITIES CLASS ACTION FILINGS

 

Read More >>

DELAWARE SUPREME COURT UPHOLDS POISON PILL REJECTION  

The Williams Cos. Inc., et al. v. Wolosky, et al., No. 2020-0707 (Del. Nov. 3, 2021)

The Delaware Supreme Court recently affirmed a Court of Chancery decision that enjoined an energy company from adopting a shareholder rights plan, or “poison pill.”  

A poison pill is a defensive tactic used by a corporation's board of directors against a takeover. Such corporate charter provisions issue dividends that enable shareholders to buy more shares at a discount if one shareholder buys a certain percentage or more of the company's shares, diluting outsider voting clout.


After a post-pandemic dip in its stock price, the energy company adopted a poison pill strategy to prevent a hostile takeover by activist investors. A group of shareholders challenged the plan, arguing it failed to address any specific threat and could be triggered even if a group of investors were only perceived to be acting in concert. 


The court analyzed the poison pill under the two-part test set forth in Uncoal Corp v. Mesa Petroleum. To uphold such a plan, the board must have “reasonable grounds for concluding that a threat to the enterprise existed” and that “any defensive measures taken were reasonable in relation to the threat posed.” Finding the poison pill was not adopted in response to a particular takeover threat facing the company and that the company’s response to the perceived threat was disproportionate, the court rejected the plan. 

 

The Takeaway

Although the decisions made by boards of directors are generally protected by the business judgment rule, or the presumption that corporate executives are acting in the best interests of the corporation and its stakeholders, litigation arising out the adoption of a shareholder rights plan is likely. Accordingly, it is important to review the provisions of the applicable directors and officers liability (“D&O”) policy to ensure such legal challenges will be afforded coverage.

D&O INSURER NEEDN’T COVER COSTS FOR CLAIMS AGAINST INDIVIDUAL INSUREDS NOT BROUGHT AGAINST THEM IN THEIR CAPACITY AS INSUREDS

Calamos Asset Mgmt., Inc. v. Travelers Cas. and Sur. Co. of Am., No. 18-1510 (D. Del. Oct 21, 2021) 

This coverage dispute concerned the obligation to pay defense costs and a settlement arising out of an underlying stockholder claim against a company’s directors and officers for breach of fiduciary duty. 

 

In the underlying stockholder action, the individual insureds were sued in their capacities as both officers and directors of the company, as well as controlling stockholders. The individual insureds sought coverage under the company’s directors and officers liability (“D&O”) insurance policy, arguing that because the action was brought against them in their roles as both stockholders and covered directors, the D&O insurer was responsible for the entire settlement as the claims against them could not be separated.


The court disagreed, finding the D&O policy only provided coverage for those claims brought against the individual insureds involving their acts as directors of the company. By trying to find coverage for the claims brought against the directors in their capacities as controlling stockholders, the court noted the company sought “to expand the scope of coverage” provided by the policy.


In so finding, the court looked to the relevant language of the D&O policy, which stated, in part, that coverage was provided for insured persons for a “Company Loss … resulting from a Claim … for a Wrongful Act.” The policy defined “Wrongful Act” as a “breach of duty by an Insured Person while acting in his or her capacity as an Insured Person,” which was further defined as directors and officers, but not stockholders, of the company. Accordingly, the court found that coverage for the individual insureds was limited under the relative exposure rule to amounts allocated to settlement and defense based on the individuals’ actions as directors of the company, but not as controlling stockholders.

FORMER CEO SEEKS PROPORTIONAL INDEMNIFICATION AFTER PARTIAL VICTORY IN BREACH OF DUTY OF LOYALTY ACTION

Evans v. Avande, Inc., No. 2018-0454-LWW (Del. Ch. Sep. 23, 2021) 

In the underlying action, a management consulting company filed litigation against its former CEO alleging he breached his duty of loyalty by engaging in self-interested transactions, authorizing improper expenditures, and failing to maintain proper documentation. 

 

At trial, the Delaware Chancery Court found that the former CEO breached his fiduciary duties and awarded damages on one count in the complaint, but ruled in favor of the former CEO on all the other counts. The former CEO previously sought indemnification and advancement of costs from the company but such demand was refused.

 

Following the conclusion of the fiduciary duty litigation, the former CEO filed suit seeking indemnification under Delaware General Corporate Law for fees and expenses in the fiduciary duty litigation and “fees on fees” for the current indemnification action. The suit alleged that since the former CEO was “vindicated on all of the claims brought against him, except one,” he was entitled to indemnification under Delaware’s mandatory indemnification provisions. Further, the former CEO argued that since the damages awarded against him were only 1.2% of the damages sought, “he should be deemed indemnified for 98.8% of his defense costs,” including that same percentage for costs incurred defending the breach of duty of loyalty claim.

 

The court disagreed and found the former CEO’s argument for proportional indemnification to be “unprecedented” and unsupported by Delaware law. Further, the court held that “to define a party’s success for indemnification purposes based on the proportion of damages recovered on a single claim would be unworkable.” Instead of basing proportional indemnification on a percentage of damages awarded, Delaware Courts will continue to determine whether a person was successful, or vindicated, on a “claim by claim basis.” In the subject case, the court held that the former CEO was not entitled to indemnification for a portion of the expenses incurred in defending the breach of duty of loyalty claim given he did not prevail on that claim.

 

The Takeaway

Delaware Gneral Corporation Law contains both “permissive” language for indemnification in certain instances and “mandatory” language in other instances. Even if a corporate officer is not completely exonerated of all alleged wrongdoing, there are certain mandatory indemnification protections when a defense is at least partially successful.

 

CONNECTICUT FEDERAL COURT REVERSES RULING ON D&O INSURER’S OBLIGATION TO ADVANCE DEFENSE COSTS

Conn. Mun. Elec. Energy Coop. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 3:19cv00839 (D. Conn. Oct. 29, 2021)

As discussed in the September 2021 edition of Executive Liability Insights, a Connecticut Federal court recently held that two grand jury indictments did not constitute covered claims under a municipal energy company’s directors and officers liability (“D&O") policy. As such, the insurer did not have an obligation to advance defense costs where it had no duty to defend.

 

 

The court, however, recently reversed its ruling, finding it had overlooked admitted evidence in its prior decision. Specifically, the court noted the energy company had in fact established that the grand jury indictments were “Claims” stemming from “Wrongful Acts” by “Individual Insureds” that were submitted during the policy period. The court further noted that although the insurer objected to the company’s statement of material facts, it failed to rebut the company’s specific evidence that the indictments were covered claims. Moreover, the insurer’s arguments regarding lack of consent to incur “reasonable and necessary” defense costs, along with the fact that the company had not shown that defense costs breached the retention, were not threshold issues of coverage that negated the insurer’s obligation to defend. Accordingly, the court found the D&O insurer did have a duty to cover the energy company’s legal expenses.

 

PROFESSIONAL LIABILITY INSURER MUST PAY CLAIM AS COURT REFUSES NARROW INTERPRETATION OF PROFESSIONAL SERVICES

Med. Protective Co. v. Crafton Chiropractic, Inc.; No. 20-00414-KD-B (S.D. Ala. Nov. 1, 2021)

In the underlying suit, the estate of a deceased patient who was treated at a chiropractic clinic and subsequently died of breast cancer sued the clinic for, among other things, misrepresentation, negligence in the provision of cancer treatments, and malpractice. 

 

The clinic tendered the suit to its professional liability insurer for defense and indemnification, but the insurer denied coverage, claiming the definition of professional services was limited to chiropractic services. Additionally, the insurer argued the clinic’s application contained misrepresentations because services other than chiropractic services were being provided, and therefore, it had no duty to defend. The insurer sought to void the professional liability policy and litigation ensued.


The court disabused the insurer of its belief with regards to the duty to defend, professional services, and the application representations. The insurer alleged the clinic never disclosed it provided cancer treatments, but rather claimed to provide a holistic approach to chiropractic treatments, including diet and nutrition. The court, however, found the statements in the application that general healthcare services were provided in conjunction with the specific chiropractic care were sufficient to encompass the services provided to the patient in the underlying suit. Therefore, there was no misrepresentation in the application. Furthermore, the court found the insurer was obligated to defend its insured, even if the allegations were for intentional acts that might later be found to be excluded from coverage.  

 

The Takeaway

A policy application, especially in professional liability policies, must be carefully reviewed to encompass all services that are being provided. While this insured avoided the issue of rescission in the case at hand, the next may not.

 

TCPA PENALTIES UNINSURABLE UNDER COMMERCIAL UMBRELLA POLICY

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Dish Network, LLC, No. 20-1215 (10th Cir., Nov. 2, 2021)

The insured, a satellite television provider, was sued for alleged violations of the Telephone Consumer Protections Act (“TCPA”), which forbids a party from making telephone calls to residential landlines with an artificial or prerecorded voice without the prior consent of the recipient. The suit alleged the insured’s telemarketing practices violated TCPA and sought damages and an injunction. 

 

The insured sought coverage under its commercial umbrella insurance policy, which provided the insurer would pay, on behalf of the insured, “those sums it becomes legally obligated to pay by reason of liability imposed by law or assumed under contract because of bodily injury, property damage, personal injury or advertising injury that takes place during the policy period and is caused by an Occurrence.” The insurer denied coverage and filed suit, asking the court to find it had no duty to defend or indemnify the insured.   


The Tenth Circuit agreed with a lower court, finding TCPA statutory damages constitute “penalties” and are therefore uninsurable as a matter of public policy. Additionally, the umbrella policy did not provide coverage for the costs of preventing future harm, the court noted. Although the insured argued the allegations potentially fell within the policy’s definitions of “bodily injury” and “property damage,” the court found “the complaint did not include any allegation that the unsolicited telemarketing calls physically injured any consumer, nor did it allege property damage, including ‘loss of use’ of ‘tangible property.’” Consequently, the insurer had no duty to defend the insured in the lawsuit.  

 

ENERGY COMPANY REACHES CLASS SETTLEMENT OVER ALLEGED TCPA VIOLATIONS

Jenkins, et al. v. Nat’l Grid USA Serv. Co., et al., No. 15cv1219 (E.D.N.Y. Nov. 8, 2021)

A group of customers recently asked the court for preliminary approval of a $38.5M settlement resolving class allegations that several gas companies violated the Telephone Consumer Protections Act (“TCPA”). 

 

The proposed settlement would certify a class of all U.S. residents who received unsolicited calls on their cellphones that used a prerecorded message or artificial voice concerning, among other things, the payment or status of current or past bills. In addition to each member of the class receiving a payout, the settlement also requires the companies to implement new policies and practices to prevent future TCPA violations.   

The Takeaway

TCPA continues to be an area of concern, especially given the per-violation basis of potential penalties. While insurers are increasingly adding TCPA exclusions to policies, it is important to review all in-force policies for potential sources of insurance coverage.

 

 

Cyber Corner

NEW FEDERAL REGULATION IMPOSES CYBERSECURITY INCIDENT REPORTING REQUIREMENTS ON BANKS

 

Three federal agencies responsible for regulating the financial services industry have issued rules requiring banks to disclose significant security breaches to that institution’s “primary regulator” no later than 36 hours following their discovery.

Read More >>

“SILENT CYBER” COURT HOLDING COMPLICATES COVERAGE FOR RANSOMWARE ATTACKS

EMOI Servs. LLC v. Owners Ins. Co., No. 29128 (Ohio Ct. App. Nov. 5, 2021)

 

In a decision that appears to swim against the tide of other rulings, an Ohio appeals court recently held a business that suffered a loss of access to its computer network following a ransomware attack had made a valid claim that could trigger coverage under its property policy. 

 

Read More >>

 

EPL Corner

LATE NOTICE PRECLUDES COVERAGE FOR EEOC CHARGE UNDER EPL POLICY

PMTD Rests., LLC v. Houston Cas. Co., No. 1:20cv04191 (N.D. Ga. Sept. 15, 2021)

A restaurant group received a Notice of Charge of Discrimination from the U.S. Equal Opportunity Commission (“EEOC”) in which an employee claimed racial discrimination and retaliation. 

Read More >>

SETTLEMENT REACHED IN ERISA CLASS ACTION 

Allegretti, et al. v. Walgreen Co. et al., No. 1:19cv05392 (N.D. Ill. 2021)
A class action suit was filed against an employer, alleging the company’s profit-sharing retirement plan contained underperforming funds, and that the company had failed to alternate to better-performing options in violation of its fiduciary duties. 
Read More >>

RIDE SHARE DRIVERS MUST ARBITRATE EMPLOYEE STATUS CLAIMS

Cunningham, et al. v. Lyft Inc., et al., No. 20-1373 (1st Cir. Nov. 5, 2021)
This matter arose after a group of drivers brought suit alleging a large ride sharing company misclassified them as independent contractors rather than employees. 
Read More >>

 

SEC Corner

SEC INKS SETTLEMENT WITH SPAC OVER FRAUD CHARGES

The U.S. Securities and Exchange Commission (“SEC”) is continuing its pursuit into investigating special purpose acquisition company (“SPAC”) merger transactions, as evidenced by its recent settlement with a digital music streaming company.

Read More >>

FICC SETTLES WITH SEC OVER RISK MANAGEMENT INADEQUACIES 

The U.S. Securities and Exchange Commission (“SEC”) recently entered an Order of Settlement in a matter involving the Fixed Income Clearing Corporation (“FICC”), in which the SEC alleged FICC failed to maintain adequate risk management policies and procedures.

Read More >>

ELECTRIC CAR COMPANY TO SETTLE WITH SEC OVER FORMER CEO’S SOCIAL MEDIA ACTIVITY

The former CEO of an electric car company was charged by the U.S. Securities and Exchange Commission (“SEC”) for using social media to repeatedly mislead investors about the company’s technology and capabilities. 
Read More >>

SEC ENFORCEMENT ACTIONS AGAINST PUBLIC COMPANIES DECLINE IN FY 2021

According to a recent report from Cornerstone Research, the number of actions filed by the U.S. Securities and Exchange Commission (“SEC”) against public companies and public subsidiaries has declined for the second year in a row. 
Read More >>

SEC ENFORCEMENT ACTIONS, SETTLEMENTS AND JUDGMENTS

November 2021 Noteworthy Enforcement Actions Filed

 Director/Officer

 Role

 Company

 Lina Maria Garcia 

 President, Chief Compliance Officer 

 UCB Financial Advisers, Inc. 

November 2021 Noteworthy Settlements And Judgments

Amount

Director/Officer

Role

Company

$5,312,071.00 

Guy S. Griffithe

President

Renewable Technologies Solution, Inc.

$1,816,817.00

Kevin KuhnashFormer CEOLucent Polymers, Inc.

$831,670.00

Jason JimersonFormer COOLucent Polymers, Inc.

$240,934.00

William D. WrightCorporate ControllerCEB Inc.

$195,046.00

Dale RedmanFormer CEOProPetro Holding Corp.

$100,000.00

John A. PaulsenFormer Managing DirectorNew York State Common Retirement Fund
Source: U.S. Securities and Exchange Commission

Shareholder Corner

NOVEMBER 2021 SECURITIES CLASS ACTION FILINGS

Company
Sector
Peloton Interactive, Inc.
Consumer Cyclical
American Century Capital Portfolios, Inc. 
Financial
Ginkgo Bioworks Holdings, Inc. ^
Healthcare
Novavax, Inc.
Healthcare
Silverback Therapeutics, Inc.
Healthcare

 Playtika Holding Corp.

Services
Tenet Fintech Group Inc.
Services
Zhangmen Education Inc. 
Services
Citrix Systems, Inc.
Technology
Lightspeed Commerce Inc.
Technology
ON24, Inc.
Technology
Snap, Inc.
Technology
StoneCo Ltd.
Technology
Zillow Group, Inc.
Technology

NOVEMBER 2021 M&A-RELATED SECURITIES CLASS ACTION FILINGS

Company
Sector
Owlet, Inc. ^
Healthcare
^SPAC-related

Source: Stanford Law School Securities Class Action Clearinghouse

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Contributors

Steve Shappell, Esq.
Executive Vice President
Claims & Legal
Steve.shappell@alliant.com
303-885-8228




Abbe Darr, Esq.
Claims Attorney
abbe.darr@alliant.com


David Finz, Esq.
Claims Attorney
david.finz@alliant.com


Erica Ahern
Claims Advocate
erica.ahern@alliant.com


Jacqueline Noster, Esq.
Claims Attorney
jacqueline.noster@alliant.com


Jacqueline Vinar, Esq.
Claims Attorney
jacqueline.vinar@alliant.com


Jaimi Berliner, Esq.
Claims Attorney
jaimi.berliner@alliant.com


Katherine Puthota
Claims Advocate
katherine.puthota@alliant.com


Matia Marks, Esq.
Claims Attorney
matia.marks@alliant.com


Meaghan Fisher
Senior Claims Advocate
meaghan.fisher@alliant.com


Megan Padgett
Senior Claims Advocate
megan.padgett@alliant.com


Robert Aratingi
Senior Claims Advocate
robert.aratingi@alliant.com


Robert Hershkowitz, Esq.
Claims Attorney
robert.hershkowitz@alliant.com


Steve Levine, Esq.
Claims Attorney
slevine@alliant.com


Vanessa Gonzalez
Senior Claims Advocate
vanessa.gonzalez@alliant.com