On January 27, 2026, the Delaware Supreme Court issued a significant pro-policyholder decision affirming that directors and officers (“D&O”) insurers must cover a $28 million settlement paid by Harman International Industries Inc., to resolve stockholder litigation arising from its multi-billion dollar sale to Samsung Electronics Co., Ltd. The Court affirmed the Superior Court’s ruling that the applicable D&O policy’s Bump-Up Provision did not exclude coverage for the settlement, rejecting the insurers’ arguments that the payment effectively increased the merger consideration and was therefore barred under the policy.

The Court’s analysis centered on the specific structure of the Bump-Up Provision, which excluded coverage when (1) an underlying claim alleged that the acquisition consideration was inadequate, and (2) a settlement payment represented an effective increase in that consideration. While the Supreme Court agreed that the securities claims satisfied the first requirement, it held that the insurers failed to prove the $28 million settlement functioned as an effective increase in deal consideration. This rendered the Bump-Up Provision inapplicable as a bar to coverage.

In evaluating whether the settlement represented an “effective increase” in consideration, the Supreme Court examined the settlement terms, class of recipients, timing, and nature of the payment. The Court made clear that compensatory payments tied to alleged legal harm do not automatically equate to a repricing of a transaction. The coverage analysis therefore depends on the policy’s wording and the real-world effect of the payment, not simply the transactional setting.

For policyholders facing post-closing stockholder suits and other M&A-related disputes, the Harman decision confirms that D&O coverage may be available where a bump-up exclusion requires proof that a settlement represents an effective increase in consideration and the insurers cannot meet their burden to make that showing. Settlements are not excluded merely because they arise from a transaction.  Courts will require a clear alignment between the exclusion’s wording and the loss at issue, rather than relying on broad insurer characterizations of the loss. 

The Harman decision also underscores how subtle drafting differences in the policy language, such as how the terms “representing,” “effectively,” or “consideration” are framed, can impact or determine the outcome of a coverage dispute. This serves as a timely reminder of the importance of reviewing and negotiating corporate insurance policies at renewal, including a company’s D&O policy—a core fundamental coverage for most all public and private companies and their individual directors and officers. The Harman decision reflects the reality that a number of policy provisions in D&O policies can vary widely, and small wording changes can have substantial consequences. With slightly different language in the Bump-Up Provision in Harman, the result here (millions of dollars in insurance coverage) could have been different, underscoring the value of policy reviews by counsel before renewing your policies and after a claim arises without accepting insurers’ often inaccurate interpretations at face value.

Representations and warranties insurance (RWI) has become a fixture in today’s M&A landscape, offering buyers and sellers a mechanism to shift risk and streamline negotiations. Yet, as the RWI market matures, certain recurring disputes highlight the friction between deal economics, coverage intent, and post-closing realities. One common dispute arises when a pre-closing breach continues after the Closing date, raising the thorny question: when does loss stem from a covered pre-closing breach, and when is it attributable to post-closing conduct that falls outside the policy?

Continue Reading The Breach That Won’t Die: Navigating Post-Closing Conduct and RWI Coverage Disputes

Government and Federal Aviation Administration (FAA) safety directives have led to a reduction in flights beginning November 7, 2025, to protect people and property from potential accidents. The FAA’s Emergency Order Establishing Limitations on the Use of Navigable Airspace explains that the restrictions are necessary “to ensure the safety of aircraft” and “[t]o maintain the highest standards of safety” in the National Airspace System. For companies whose operations or revenues are affected, these measures may give rise to recoveries under general liability and property insurance policies.

Continue Reading Obtaining Insurance Recoveries From FAA-Mandated Flight Reductions

On October 20, 2025, the United States Court of Appeals for the Fifth Circuit issued a significant decision clarifying that an insurer’s duty to defend under Texas law extends to a contractually mandated alternative dispute resolution (ADR) proceeding.[i] The Fifth Circuit reversed a magistrate judge’s dismissal of BPX Production Co.’s (BPX) coverage claims, holding that an ADR proceeding triggers an insurer’s duty to defend and indemnify under a commercial general liability (CGL) policy—thus rejecting the insurer’s argument that a “suit” was required.  Further, the Fifth Circuit held that an insurer’s conduct can waive conditions to coverage. This decision provides important guidance for corporate policyholders navigating insurance disputes involving an ADR proceeding, policy defenses asserted by insurers, and the assignment of insurance rights to maximize an insurance recovery in the circumstance of a bankruptcy.

Continue Reading Fifth Circuit Issues Pro-Policyholder Ruling that ADR Proceeding Triggered Insurer’s Duty to Defend and Indemnify

Amazon’s recent announcement to invest at least $20 billion in cloud computing and AI data center campuses across Pennsylvania—a record‑breaking private investment in the Commonwealth—marks a turning point in digital infrastructure build-out.  Spanning sites in Luzerne and Bucks counties, the project promises 1,250 full‑time roles and thousands more in construction, while pairing with high‑demand energy sources like a nearby nuclear plant. The rapid expansion of AI data centers poses a unique set of risks—ranging from construction hazards to power and environmental challenges— and highlights the need those involved in these large infrastructure projects to close potential insurance coverage gaps and to explore alternative risk transfer solutions.

Continue Reading The New Frontier: Data Centers, AI & Insurance Implications

Last month, the New York Supreme Court issued a well-reasoned order denying the Archdiocese’s insurers’[1] motion to dismiss its claim against them for breach of the covenant of good faith and fair dealing, holding that the policyholder’s complaint sufficiently alleged its Insurers claim handling conduct amounted to bad faith.[2]  The Order is part of a new trend in New York that allows bad-faith claims to proceed when styled as claims for breach of the duty of good faith and fair dealing, where the conduct supporting the alleged bad-faith claim is independent of the alleged conduct giving rise to a breach of contract claim, and the policyholder sufficiently alleges damages arising from the bad-faith conduct. 

Continue Reading The Archdiocese Resurrects Faith in the New York Court System:  New York Supreme Court Issues Another Decision Allowing a New York Policyholder to Seek Damages for Bad-Faith Claim Handling

In a pro-policyholder ruling, the North Carolina Supreme Court recently held that a homeowner’s claims against an insurance agent for negligence and gross negligence, seeking punitive damages, survived a motion to dismiss based on the insurance agency’s course of dealing with the homeowner. The decision, Jones v. J. Kim Hatcher Insurance Agencies, Inc., et al., is a win for policyholders and demonstrates how the North Carolina Supreme Court is willing to balance the normal expectation that a person must read what he signs with an insurance agency’s role in inducing the policyholder to do otherwise.

Continue Reading North Carolina: Policyholders Not Contributorily Negligent for Agent’s Misstatements

Today, large swaths of the globe stand at the brink of political violence and armed conflict with some areas in active warfare.  Russia’s ongoing war in Ukraine, Israel’s armed conflicts against Hamas in Gaza and Hezbollah in Lebanon, and the simmering tensions regarding China’s territorial claim to Taiwan and other disputed territories in the South China Sea are just a few international conflicts that grab daily international headlines.  Turmoil in the global markets stemming from the imposition of tariffs between the U.S. and some its trading partners has raised concerns of a global recession that could further destabilize governments and currency in emerging markets.  But in this period of uncertainty in the international order, companies with substantial international investments or operations may face increased risks of expropriation, currency instability and political violence in jurisdictions previously thought stable.  Indeed, insurance company Allianz considers about 100 countries to be at “high or extreme risk of civil unrest.” 

Continue Reading The Increasing Importance of Political and Marine/War Risks Insurance to Manage Risks From Global Unrest and Disruptions to the International Trade System   

Natural disasters are becoming more frequent, more severe, and more destructive.  No part of the United States is entirely immune from some combination of tornadoes, fires, droughts, earthquakes, freeze events, and hurricanes.  Indeed, 2024’s “extraordinary” hurricane season saw Hurricanes Helene and Milton devastate swaths of the Southeastern United States from Florida to North Carolina.[1]  This trend has continued in the early days of 2025 with wildfires in California and winter storms in the South and along the East Coast causing devastation, supply chain disruptions, and, reportedly, tens of billions of dollars in insured losses.

Continue Reading America’s Aging Dams and Other Infrastructure is an Urgent Insurance Coverage Issue
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Following the recent catastrophic wildfires that have affected California, businesses need assistance navigating the ins and outs of insurance coverage and the claims process and ultimately protecting their interests if litigation ensues. Whether it’s wildfires in California, hurricanes along the Atlantic and Gulf coasts, tornadoes in the Midwest, or infrastructure failures in major population centers, how can you maximize recoveries under insurance programs and policies? And how can corporate policyholders manage claims, coverage disputes, business interruption insurance and more — no matter the cause of the crisis or the industry involved?

Click below for resources that support those who have experienced loss, especially in the wake of the Los Angeles wildfires.

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