Practices  |  Insurance

Public and Private Company D&O and E&O Liability


Wiley Rein's Professional Liability Practice is recognized as one of the preeminent insurer-side practices in the nation. Our focus is obtaining effective claims resolution for our clients. We help insurers understand the merits and damages issues presented by a wide variety of underlying exposures and provide a deep knowledge of coverage issues and sensitivity to our clients’ business realities. Our attorneys navigate among plaintiffs’ attorneys, defense counsel, insureds and other carriers to achieve value for our clients at mediation or through other informal dispute resolution. When necessary, our experienced litigators achieve superior results in coverage and bad faith litigation at the trial and appellate levels.

We represent professional liability carriers in numerous areas, including directors and officers liability policies issued to Fortune 500 corporations as well as smaller and privately held companies; professional liability policies insuring investment advisors, mutual funds, and hedge funds; financial institution professional liability policies that insure banks; fiduciary liability policies; and insurance company errors and omissions policies. Representative recent matters include the following:

  • Wiley Rein successfully enforced “consent to settle” and “no action” provisions in a D&O policy, clarifying Georgia law. The insured was named as a defendant in a securities class action lawsuit and sought the insurer’s consent to a settlement. The insurer disagreed with and declined to contribute the full amount of the settlement. The federal district court granted the insurer’s motion to dismiss. On appeal, the Eleventh Circuit certified the question to the Georgia Supreme Court. The Georgia Supreme Court agreed that the settlement was not covered because the insured had not obtained the insurer’s prior consent to the settlement. Piedmont Office Realty Trust, Inc. v. XL Specialty Ins. Co., No. SI5Q418, 2015 WL 1773620 (Ga. 2015).
  • Wiley Rein obtained a million dollar judgment in favor of a D&O insurer. The insurance carrier advanced defense costs for certain investigations of a government contractor and its officers. After the officers pleaded guilty to criminal charges, the carrier argued that fraud, profit, prior knowledge and warranty exclusions barred coverage and that it was entitled to recoup all defense costs. The district court entered summary judgment for the carrier and awarded it the full amount of defense costs, plus pre-judgment interest from the date of each payment. The Fourth Circuit affirmed. Protection Strategies, Inc. v. Starr Indemnity & Liability Co.,No. 13-763, 2014 WL 1655370 (E.D. Va. Apr. 23, 2014), aff’d, No. 14-1972, 2015 WL 3396812 (4th Cir. May 27, 2015).
  • Wiley Rein established that a bank’s settlement of overdraft fee litigation did not constitute covered “loss.” The bank’s customers filed class actions alleging that the insured improperly manipulated the sequence in which it processed customers’ transactions so that accounts were overdrawn multiple times, maximizing overdraft fees. The court agreed that the settlement comprised non-covered “fees, commissions or charges” and not covered “damages.” PNC Financial Services Group, Inc. v. Houston Cas. Co., No. 13-cv-331, 2014 WL 2862611 (W.D. Pa. June 24, 2014).
  • Wiley Rein aided its client in overturning an adverse district court judgment and obtaining judgment on appeal. The Eighth Circuit held that a joint lawsuit by four siblings against an investment advisor alleged “Interrelated Wrongful Acts” and therefore constituted a single claim because each sibling alleged that the adviser provided unsuitable investment advice and breached her fiduciary duties to each sibling in the same manner. Kilcher v. Continental Cas. Co., 747 F.3d 983 (8th Cir. 2014).
  • Wiley Rein represents a leading professional liability insurer in connection with coverage litigation concerning more than 200 multi-billion-dollar claims arising from the credit crisis and follow-on regulatory oversight of the mortgage industry. The litigation focuses on whether the claims implicate two or four $150 million towers of professional liability insurance and whether the claims implicate covered professional services and covered “loss.” SunTrust Banks, Inc. v. Certain Underwriters at Lloyd’s London, et al., No. 14-cv-249230 (Ga. Super. Ct, Fulton County).
  • Wiley Rein represented a leading insurance company in connection with the securities and derivative litigation filed against News Corporation arising out of phone hacking and other allegations (In re News Corp. Securities and Derivative Litigation). Our lawyers led the D&O liability insurance tower to a favorable resolution of the complex insurance coverage issues raised by the litigation. The derivative settlement in the case was then the largest on record in Delaware.
  • Wiley Rein vindicated an excess carrier’s right to rely on its clear exhaustion language. The insured investment advisory firm reached a settlement with the primary carrier for payment of roughly half the primary limit for reimbursement of expenses incurred in connection with civil claims and criminal prosecutions arising from a tax shelter scheme. The appellate court held that the below-limits settlement failed to satisfy the excess policy language requiring full payment of the primary limit by the primary insurer before the excess coverage could be triggered. Quellos Group, LLC v. Federal Insurance Company et al., 312 P.3d 734 (Wash. 2013).
  • Wiley Rein obtained trial court and appellate victories for a municipal liability insurer in the “kids for cash” scandal. Our attorneys established that there was no coverage for the owner and operator of the juvenile detention centers who bribed judges to send juveniles to the detention centers. The Third Circuit held that the underlying complaints did not allege covered negligence, there was no covered “occurrence,” and policy exclusions otherwise barred coverage. General Star Indemnity Co. v. Mid-Atlantic Youth Services, Inc., No. 3:10-CV-0511, 2010 WL 4942268 (M.D. Pa. Nov. 30, 2010), aff’d 2012 WL 2354435 (3d Cir. Jun. 21, 2012).
  • Wiley Rein represented the primary Side A carrier and an excess insurer in obtaining a closely-watched “related claims” ruling in coverage litigation arising out of the collapse of IndyMac Bancorp. In this key credit crisis case, the court rejected the claimants’ efforts to trigger a second $80 million tower of coverage. The court held that various lawsuits filed during the second policy period related to prior claims about the insured’s underwriting practices made before the inception of the second policy period. XL Specialty Ins. Co. v. Perry, et al., No. CV 11–02078–RGK (JCGx), 2012 WL 3095331 (C.D. Ca. June 27, 2012).

Members of our Group are active in key industry associations and frequently speak and publish on cutting-edge professional liability issues. In addition, the Group authors the Executive Summary Blog, which reviews recent cases in the professional liability coverage area. 

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