Federal appellate courts across the country are poised to weigh in on some of the thorniest issues in directors and officers coverage over the course of 2023, with opinions expected on whether government investigations count as securities claims, the so-called bump-up exclusion and a key False Claims Act dispute.
Here, Law360 breaks down the top D&O insurance cases to watch this year.
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Raymond Mascia Jr., a shareholder in Anderson Kill PC's insurance recovery practice, said that Astellas' policy with Federal contained a provision providing that claims alleging fraud are covered unless and until there's a final adjudication on the policyholder's conduct. Astellas' settlement with the DOJ can't meet that standard, he noted.
"In this case, there was no final adjudication that the policyholder committed fraud," Mascia said. "So even if the settlement could be construed as disgorgement, it would still be covered under the policy because Federal expressly agreed to cover those settlements."
"If the insurance industry doesn't want to insure FCA investigations and claims, it should say so unmistakably rather than rely on the 'uninsurable as a matter of law' provision," Mascia said.
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