When the Ninth Circuit ruled recently that debit transactions can be ordered in a way that maximizes overdraft fees, it potentially handed banks a new weapon to win insurance coverage for the hundreds of millions of dollars they've paid out to settle class actions over the practice, experts say.
Banks that are struggling to get insurance coverage for settlements of overdraft litigation should pay attention to the ruling, which speaks directly to the conduct at issue in the underlying suits, according to Marshall Gilinsky, a shareholder at Anderson Kill & Olick PC.
"[The practice] might make you feel bad [and] it might make a jury angry at you, but [the banks] were allowed to do it," Gilinsky said. "How could the settlement of those cases be considered disgorgement? There's really no difference between the settlement of those cases and the settlement of any case without admission of liability."