PART 4: The Interaction Between Purchase Agreement Remedies and RWI Coverage

Introduction

Representations and warranties insurance (“RWI”) has changed the way buyers and sellers allocate post-closing risk.  In many transactions, RWI allows sellers to significantly limit their post-closing indemnification obligations while providing buyers with a separate source of recovery for breaches of representations and warranties.

But RWI does not necessarily replace the remedies available under the purchase agreement.  Seller indemnification, escrows, purchase price adjustments, covenant claims, fraud remedies, and other negotiated rights may continue to exist alongside the insurance policy.  When a post-closing issue arises, understanding how those remedies interact with RWI coverage can be critical to developing an effective recovery strategy.

For buyers and deal professionals, that means considering the purchase agreement and RWI policy together—not only when structuring the transaction, but also when determining how to proceed following a breach.

Continue Reading RWI in Practice: A 7-Part Series for Deal Professionals

When a general contractor or project owner tenders a claim under a subcontractor’s Commercial General Liability (CGL) policy for additional insured coverage, the insurer’s first basis for denying coverage is often to argue that the CG 20 10 endorsement covers only the additional insured’s vicarious liability for the named insured’s negligence, and that any independent fault on the additional insured’s part extinguishes coverage entirely. However, the endorsement’s text and the weight of judicial authority suggest otherwise. This article examines the “caused, in whole or in part, by” language that ISO has included in every edition of its CG 20 10 endorsement since July 2004, traces the key judicial decisions interpreting that language, and explains why a national consensus has develop that rejects the vicarious-liability-only limitation that insurers continue to press.

Continue Reading The CG 20 10 Endorsement and the Fight Over Additional Insured Coverage on Construction Projects

The global data center industry is experiencing unprecedented growth.  According to Fortune Business Insights, the global data center market reached $269.79 billion in 2025.  This market is projected to grow to $300.64 billion in 2026, and then more than double to $699.13 billion by 2034, reflecting a compound annual growth rate (CAGR) of approximately 11.10%. North America accounted for roughly 38.5% of the global market share in 2025. The capital flowing into this sector is staggering: McKinsey estimates that companies across the compute power value chain will need to invest $5.2 trillion into data centers by 2030 to meet worldwide artificial intelligence (“AI”) demand, with an accelerated scenario requiring as much as $7.9 trillion in capital investments. Goldman Sachs projects total hyperscaler capital expenditure from 2025 through 2027 will reach $1.15 trillion—more than double the $477 billion spent from 2022 to 2024—and anticipates roughly $7.6 trillion of cumulative AI-related capital expenditure between 2026 and 2031. BloombergNEF reports that the 14 largest publicly owned data center operators globally are projected to spend close to $750 billion in capital expenditures in 2026 alone, up from approximately $450 billion in 2025.  The data center industry has become a behemoth in a shockingly short amount of time.

Continue Reading The Data Center Boom and D&O Insurance: Navigating Uncharted Liability Exposure in a High-Growth Industry

In March 2023, we wrote about the failure of Silicon Valley Bank (“SVB”) and potential implications of its takeover by the Federal Deposit Insurance Company (“FDIC”). As we noted then, the FDIC, as receiver for SVB, has broad discretion to manage the bank’s assets and liabilities, including selling assets for the benefit of creditors and bailing out the distressed bank. 

Continue Reading Parent Company Beware: Subsidiaries’ Fidelity Bond Claims May Belong to FDIC in Receivership

Most policyholders purchasing directors and officers (D&O) liability insurance never contemplate the possibility that their insurer will one day demand repayment of advanced defense costs, let alone seek interest on top of repayment.  Although many D&O policies preserve an insurer’s contractual right to seek reimbursement of defense costs that are ultimately determined not to be covered, insurers rarely exercise that right.  Even rarer is a case in which an insurer not only litigates to recoup the advanced defense costs, but then seeks prejudgment interest on top of the amounts repaid.  A recent decision by the U.S. District Court for the District of Maryland in Navigators Insurance Co. v. Under Armour, Inc., No. CV RDB-22-2481 (D. Md. July 7, 2026), presents precisely this seldom-litigated scenario.  This case serves as a cautionary lesson to policyholders regarding reimbursement provisions and interim funding agreements, which can have significant consequences.

Continue Reading When Your D&O Insurer Wants Its Money Back — With Interest

Policyholders increasingly turn to artificial intelligence (“AI”) platforms to answer insurance coverage questions.  This is risky because: (1) AI models hallucinate legal content at alarming rates; and (2) AI cannot apply nuanced, fact-specific and jurisdiction-specific legal analysis.  As OpenAI Foundation recently acknowledged, “ChatGPT . . . neither has nor uses any degree of legal knowledge or skill.”  See 
https://fingfx.thomsonreuters.com/gfx/legaldocs/xmvjydomqpr/Nippon%20Life%20v%20OpenAI%20motion%20to%20dismiss.pdf.  Any policyholder who receives a “no coverage” answer from AI should consult experienced coverage counsel before accepting that conclusion.

Continue Reading Insurance Claims Deserve Better Than an Algorithm’s Opinion

PART 3: Tips for Negotiating Key Policy Terms

Introduction

Representations and warranties insurance policies are often viewed as relatively standardized products.  While many policies share common structures and core provisions, important differences frequently exist beneath the surface.  As a result, seemingly minor wording changes negotiated during underwriting can have significant implications when a claim arises.

Continue Reading RWI in Practice: A 7-Part Series for Deal Professionals

When private equity fund managers think about insurance, they usually think of Representations & Warranties Insurance (“RWI”).  That makes sense—RWI covers representations baked into the deal itself that are front of mind when buying and selling portfolio companies (“PortCos”).  But once a deal closes and a PortCo continues operations under new PE ownership, a whole new set of operational issues unrelated to pre-closing representations can surface, giving rise to potential claims under a host of different lines of insurance, including directors and officers (“D&O”), errors and omissions (“E&O”), cyber, crime/fiduciary, general/limited partner (“GP/LP”), commercial general liability (“CGL”), and property policies, among others.  To make matters worse, coverage gaps between policies issued at the fund level and the PortCo level, finger-pointing between insurers, lapsed policies, and inadequate coverage can result in substantial financial losses for the PE Fund and PortCo alike.

Continue Reading Non-Deal Exposure: Practical Tips for Enhancing Insurance Coverage For Private Equity Funds and Portfolio Companies

On June 29, 2026, Virginia’s $207 billion budget bill became law, bringing a retail cannabis framework that authorizes licensed sales beginning July 1, 2027.  Businesses entering this market should be prepared for unique insurance challenges, as no Virginia court has yet interpreted how standard commercial policies apply to such businesses.

Continue Reading Virginia Green-Lights Retail Cannabis: Coverage Implications for the Cannabis Industry

PART 2: Diligence and Coverage

Introduction

One of the foundational assumptions underlying representations and warranties insurance (“RWI”) is that the buyer has conducted a reasonable diligence process prior to closing.  Although RWI is designed to transfer certain post-closing risks to an insurer, it is not intended to replace diligence or insure against risks that were insufficiently investigated.

Continue Reading RWI in Practice: A 7-Part Series for Deal Professionals