Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
How Preclusion of an FDIC Action Under the Insured v. Insured Exclusion Could Change D&O Coverage
The 2008 financial crisis might be behind us, but coverage disputes stemming from the flood of lawsuits brought by the Federal Deposit Insurance Corporation (“FDIC”) against directors and officers of failed banks are far from over. With the FDIC filing lawsuits against more than 1,200 individuals for directors and officers liability between January 2009 and August 2015, coverage continues to be hotly contested across the country, with the most heavily litigated issue being whether a lawsuit commenced by the FDIC as a receiver of a failed bank is precluded by the “insured v. insured” exclusion commonly contained in Directors and Officers liability (“D&O”) policies. See FDIC, http://1.usa.gov/1NdXuA1.
The application of this exclusion, which precludes coverage for claims based on suits brought by one insured against another, has yielded mixed results. Although some courts have held that insured v. insured exclusions preclude coverage because the FDIC “steps into the shoes” of the company when it brings lawsuits against directors and officers in its capacity as a receiver; other courts, representing a growing consensus favoring coverage, have held that the application of the exclusion in the FDIC context is ambiguous and must be construed against the insurer. However, a recent decision by the U.S. Court of Appeals for the Tenth Circuit departs from the coverage trend and raises issues that are likely to change the D&O landscape going forward.
Application of D&O Exclusions to FDIC Lawsuits
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?