Directors & Officers (D&O) Insurance Disputesin New York, NY

Yes, but only if the insurer proves a material misrepresentation that was knowingly made. Courts apply strict scrutiny to rescission attempts.

Many D&O policies for public or complex private companies are issued by surplus lines carriers not licensed in New York. While legal, these policies may lack some DFS consumer protections. We assist clients in understanding applicable rights and negotiating favorable terms in non-admitted markets.

A “hammer clause” lets insurers limit their liability if the insured rejects a recommended settlement, potentially shifting future costs to executives in New York. We review and negotiate modifications to ease financial pressure on leadership during key decisions.

Side A coverage is triggered when a company cannot indemnify due to bankruptcy, regardless of the incorporation state. Jurisdictional law differences and trustee claims can complicate this. We have expertise in coordinating multi-state defenses for executives in insolvency.

Generally, no, but some policies limit coverage based on roles or conduct exclusions. Independent directors often rely more on Side A protections. Boards should ensure all members, especially those in audit or compensation committees, are fully protected.

Many benefit corporations, nonprofits, and mission-aligned funds now seek D&O coverage due to increased stakeholder claims and ESG obligations. We help these organizations customize their coverage to match their governance models and accountability standards.

New York courts generally enforce arbitration clauses, especially in policies governed by out-of-state law. However, disputes often arise over the scope of arbitration, panel neutrality, and arbitrability of bad faith or statutory claims. We litigate these provisions where necessary and advise executives on their procedural implications.

Exclusions must be explicit and narrowly defined. We examine policies for hidden carve-outs that may leave retired or former executives unprotected, particularly regarding post-employment SEC investigations or whistleblower complaints.

Most D&O policies are "wasting," meaning legal fees reduce the total coverage available. Therefore, managing costs and negotiating advancements is crucial to preserving indemnity limits.

Many D&O policies have "change in control" provisions that may limit future coverage unless a run-off or tail policy is acquired. We assist companies and executives in ensuring coverage continuity during mergers, acquisitions, or leadership changes, particularly regarding pre-close conduct exposure.

Yes—if the policy’s definition of “claim” includes subpoenas or informal investigations. This is critical in SEC or DOJ matters.

New York’s Martin Act allows the Attorney General to bring securities fraud actions without proving scienter. It’s a powerful enforcement tool that D&O insurers may attempt to sidestep.

Only if the director is successful on the merits or otherwise entitled under the bylaws, certificate of incorporation, or a contract per BCL § 722.

Indemnification for punitive damages is generally not allowed under New York public policy, but coverage may be possible if another state's law applies or through negotiation. We assess this thoroughly in high-stakes cases involving alleged willful misconduct.