Navigating Current IssuesNavigating Current IssuesUnder E&O and D&O PoliciesUnder E&O and D&O Policies

Your Moderator:Gary L. Gassman

Meckler Bulger & Tilson LLP

YOUR PANELISTSEllen Van Vechten, Esq. Paul Douglas, Esq.Team Leader, Prof. Liab. Claims Asst. V.P., Sr. Claims Atty.Fireman’s Fund Ins. Co. Chubb & Son

Roberta Anderson, Esq. Rob Cutbirth, Esq.K&L Gates Tucker Ellis & West

Where We’re GoingWhere We’re GoingOur Road map for Today:

1. Coverage Grant:Who’s Covered And For What (Conduct &

$$)2. Exclusions and Conditions:

When does Bad Conduct Mean You May Lose Your Coverage (i.e., coverage denial or rescission)

Interrelated Claims and the Effect on the Date of Claim and on Deductibles/Limits3. The Effect of Bankruptcy on Coverage Exclusions and Claims Management4. How Might these Principles Apply to the next Generation of Emerging or Potential Claims

Who’s CoveredWho’s CoveredExecutives who may not have their act (or outfit) quite together

Mid- & Lower level accounting and compliance employees

“Missing” Directors or Officers or their Replacements (maybe a Bankruptcy Trustee?)

General Counsel

CLAIMSCLAIMSRegulatory Investigations and Proceedings; Coverage Issues when you are not dealing with a “suit”

When does a Claim arise from the providing of a Professional Service or Wrongful Act, and when does in involve just shoveling. . .

LOSSLOSSTHE OTHER 4-LETTER WORDTHE OTHER 4-LETTER WORD

SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549

FORM S-1 REGISTRATION STATEMENT

Under The Securities Act of 1933

Section 11 vs. Section 10(b) – When does “Loss” Exist”?Fraud and Theft can come in

many forms; when does it trigger “Loss” issues?

Neither side wants to “waste” money in “wasting” policies – So, how do we manage “Loss” issues in complex cases often involving “equitable” or “disgorgement” remedies, as well as potentially conflicting exposures for the Insureds?

Bad Conduct/Tainted MoneyBad Conduct/Tainted MoneyThe Conduct and Improper Profit LimitationsThe Conduct and Improper Profit Limitations

From “pickpockets,” to embezzlement, to falsified financial results, when does an Insured’s conduct cross the line and become excluded?

When does the receipt or access to special or different compensation, benefits or “opportunities” become an excludable event?

One little, two little, three little One little, two little, three little Claimants …Claimants …

Just How Many Claims Do You Have?Just How Many Claims Do You Have?

While many claimants think they are unique, they are often fed from the same trough or source. When should claims be considered “related” or merely distant cousins for purposes of determining policy limits and/or policy deductibles?

The “wayback machine” worked well for Poindexter, but when does it work for grouping claims together and taking them “wayback” to an earlier policy period or within a “Prior Claim” or “Prior Notice” Exclusion

The Insured vs. Insured The Insured vs. Insured ExclusionExclusion

(Really, we need to stop fighting among(Really, we need to stop fighting amongourselves, it’s not a pretty sight)ourselves, it’s not a pretty sight)

Debtors in Possession. . .Bankruptcy Trustees. . . When they start fighting with Insureds (corporate and individual), can the IVI provide comfort in these increasingly nasty storms?

Coverage ConditionsCoverage ConditionsThe Risk of Losing Important Rights The Risk of Losing Important Rights

“Plays nicely with others” is something we like to hear with respect to our kids. It also applies to our Insureds. Three tips on “playing” nicely with Insurers include:

• Giving timely notice of Claims• Seeking “permission” for defense activities• Seeking “permission” to settle (and try to spend someone else’s (the insurers’) money

And if when our Insureds don’t play nicely, coverage may end up “lost,” but never “found”

Policy ValidityPolicy ValidityWhen Should you Pull the Plug?When Should you Pull the Plug?

We all make mistakes, but some mistakes have greater consequences than others

When do you pull the plug?How do Insureds try to keep the lights on?Knowing the consequences ...