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Lowenstein Sandler LLP

Lynda A. Bennett

Lynda A. Bennett

Chair, Insurance Recovery Group; Member, Executive Board


  • Insurance Coverage
  • Commercial & Business Litigation
  • Business Litigation
  • Insurance Recovery

WSG Practice Industries


WSG Leadership

WSG Coronavirus Task Force Group

Lowenstein Sandler LLP
New York, U.S.A.


Corporate policyholders rely on Lynda to aggressively litigate, negotiate, and resolve complicated disputes with insurers. To date, she has secured hundreds of millions of dollars in insurance recoveries for her clients.

With more than 25 years of commercial litigation experience, Lynda understands that it is generally not in the best interests of corporate policyholders to engage in protracted and costly litigation, especially when doing so may disrupt business and lead to unwelcome public attention. Her goal is to assess and resolve disputes in a manner that achieves successful outcomes for her clients while minimizing interruptions to business as usual. However, if litigation becomes necessary, she has a keen sense of strategy and will exert maximum leverage to resolve claims as quickly as possible.

Lynda has obtained significant recoveries for clients in environmental, asbestos, construction defect, mass tort, product liability, D&O, and professional liability cases. She also counsels clients with respect to contractual insurance requirements, new insurance products (such as cyber insurance), innovative risk management tools, and insurance program assessment. Working with the firm's transactional lawyers, Lynda regularly advises strategic acquirers and private equity funds regarding insurance coverage issues that arise in acquisition and investment transactions and she has a deep network in the reps and warranties insurance space that is an asset for any deal.

Lynda has chaired the Insurance Recovery group since 2011 and is a member of the firm's Executive Board and Compensation Committee. She previously served on the firm's Operating Committee and Recruiting Committee.

Lynda is strongly committed to advancing the role of women in the legal profession. She is a founder of the firm's Women’s Initiative Network, is active in legal industry women's groups, and serves as a board member and past president of the New Jersey Women Lawyers Association. She is also an active participant in a firmwide initiative to help junior attorneys develop their networking, business development, and branding skills.

Bar Admissions

    New York
    New Jersey


Valparaiso University School of Law (J.D. 1994), magna cum laude; Executive Editor, Valparaiso Law Review
Susquehanna University (B.A. 1991), cum laude
Areas of Practice

Business Litigation | Commercial & Business Litigation | Family Office Practice | Insurance Coverage | Insurance Recovery | Insurance Recovery Group | Litigation | Privacy & Cybersecurity

Professional Career

Significant Accomplishments

Represent Mist Pharmaceuticals, LLC in an ongoing coverage litigation against Berkley Insurance Company (Berkley). We secured partial summary judgment reestablishing Berkley’s duty to defend Mist in an investor lawsuit pending in Delaware. Mist was awarded the full amount of the firm’s litigation fees and costs.

Achieved trial and appellate court victories in New York state court for Sterling Infosystems,Inc., a provider of background checks and consumer reports. As a result of these victories, Sterling's professional liability insurer has to cover Sterling, up to its full $5 million policy limit, for several putative class action lawsuits alleging violations of the Fair Credit Reporting Act. In addition, the insurer was ordered to reimburse Sterling for the attorneys' fees and expenses incurred for the coverage litigation.

Represented a real estate developer who purchased eight tracts of land from Consolidated Rail Corporation. Shortly after the real estate transaction closed, the developer's title to the properties was challenged by the municipality and several public interest groups. Our Insurance Recovery group secured the insurer's defense obligation. In addition, an appellate court affirmed a $1.6M fee award for past defense costs, representing more than 95 percent of the requested fees. The appellate court also granted our cross-appeal on the right to recover coverage litigation fees and costs and the right to pursue pre-judgment interest.

Acted as coverage counsel in a large construction defect litigation involving a multimillion-dollar waterfront development in New Jersey, securing a combined eight-figure insurance recovery from a variety of insurers.

Represented a large manufacturer in connection with two environmental claims under a pollution legal liability insurance policy.

Represented a health care company to resolve a dispute with its employment practices insurer and the insurer's "panel" defense counsel. The dispute involved tripartite relationship conflict issues, bad faith, and a "noncooperation" defense asserted by the insurer.

Represented a developer in connection with a multimillion-dollar title insurance dispute, securing partial summary judgment on the duty to defend and continuing to pursue indemnity coverage, bad faith, and consumer fraud claims.

Acts as coverage counsel for several manufacturing and supply companies, providing litigation and counseling assistance regarding claims disputed by various insurers that sold insurance policies to the companies. Also provides counseling advice with respect to managing insurance and indemnity risks in master services and specific project contracts.

Represented a chemical supply company in connection with insurance coverage for nationwide toxic tort litigation. Secured summary judgment and declaratory relief that resulted in 100 percent defense and indemnity coverage for claims.

Speaking Engagements

Continuing our support for women in the law, we are proud to be a Diamond Sponsor of the 2017 Women, Influence & Power in Law Conference (WIPL). WIPL's objective is to accelerate the empowerment of women in law departments and law firms while bringing together female power players within the legal industry. Three Lowenstein partners will be leading panels at this year's conference. On October 11, Vanessa Ignacio will moderate the panel "Trademark Audits: Protecting Value & Innovation for Your Brands." On October 12, Lynda Bennett will moderate the headline panel "How Leading GC's are Managing Risk, Engaging Stakeholders and Expanding Influence," and Cathy Serafin will moderate "Developing a Healthy Appetite for Risk." To learn more about the WIPL conference, click here.

Lynda Bennett will co-present the webinar "A Really Interesting & Practical Discussion About Cyberinsurance …. No, Seriously" with representatives from Aon and Stroz Frieberg, an Aon Company. The speakers will provide an overview of cyberinsurance from a legal perspective for venture backed startups, covering topics including what stage to consider cyberinsurance, how much coverage startups need, key items to look and negotiate for in insurance policies, and what happens with cyberinsurance when there is a breach.

In a world where new cyber threats emerge day after day, many businesses take (potentially false) comfort in the protection they have secured through the purchase of a dedicated cyber insurance policy.

In this program, panelists from Lowenstein Sandler and Marsh USA will discuss five common misconceptions surrounding insurance coverage for cyber risks. The panel also will provide insight into the current state of the insurance market and how insurers are trying to keep pace with the ever-evolving risk exposures created by the non-stop advancement of technology and the non-stop activities of cyber criminals.

For more information, email [email protected]

Lowenstein's Zarema A. Jaramillo introduces opening keynote speaker Valerie Jarrett, former Senior Advisor to the Obama Administration, and Lynda A. Bennett and Mary J. Hildebrand are panel moderators at the Women, Influence & Power in Law conference. 

October 4, 2018

9:15 a.m.: Opening Keynote: Fireside Chat | Staying Nimble, Taking Risks, and Empowering Women to Lead With Authenticity and Confidence

  • Introduction of keynote speaker: Zarema A. Jaramillo, Partner, Lowenstein Sandler LLP
  • Keynote speaker: Valerie Jarrett, former Senior Advisor, Obama Administration

Empathy, intuition, and collaboration are the qualities people are looking for in their leaders today. In this session, hear from our keynote speaker on how she has taken risks to breakthrough gender bias with confidence, authenticity, and effectiveness in her professional journey.

11 a.m.-12 p.m.: GDPR: Assessing Your Organizational Competence and Risk in a Data-Driven World 

  • Moderator: Mary J. Hildebrand, Partner; Founder and Chair, Privacy & Cybersecurity, Lowenstein Sandler LLP
  • Panelists:
    • Li Reilly, Vice President & Deputy General Counsel, Fareportal
    • Ilona Levine, Senior Corporate Counsel, Privacy, Data Protection, Cybersecurity and Compliance, OVH US
    • Jo Ann Lengua Davaris, Chief Privacy Officer, Mercer

The implementation of GDPR–and the potential for regulatory enforcement actions, private causes of action and legal challenges from various quarters–exemplifies the uncertainty that permeates the privacy and cybersecurity world. How can you manage your legal, compliance, and business risks to achieve the best outcome for your organization? This panel will discuss the practical implications of managing against the new organizational requirements, such as accountability measures, breach notification requirements, data subject rights, and processing system assessments.

October 5, 2018

10-11 a.m.: How to Evaluate Exposure to Personal Liability Arising from Recent Enforcement Actions Against Corporate Counsel

  • Moderator: Lynda A. Bennett, Partner; Chair, Insurance Recovery Group, Lowenstein Sandler LLP
  • Panelists:
    • Patricia Barbieri, Senior Vice President, General Counsel and Secretary, Daiichi Sankyo, Inc.
    • Lynn Feldman, EVP and General Counsel, Clear Channel Outdoor
    • Shirin Saks, Assistant General Counsel, Litigation and Employment, Dun & Bradstreet

Corporate counsels are an organization's ethics watchdogs, yet they are often asked to give strategic business advice. This can put in-house lawyers in awkward positions, jeopardize attorney-client privilege, and potentially expose the company and its leaders to liability. This session will provide an ethical framework and best practices to help navigate this dual role, and focus on how to protect corporate counsel and other executives against potential liability risks through insurance coverage and other innovative risk management techniques.

Lynda A. Bennett moderates and speaks on a New Jersey Institute for Continuing Legal Education (NJICLE) webinar on cyber insurance.

In a world where new cyber threats emerge daily, many businesses take (potentially false) comfort in the protection they have secured through the purchase of a dedicated cyber insurance policy.

At this all-new webinar, panelists will discuss five common misconceptions surrounding insurance coverage for cyber risks. The panel also will provide insight into the current state of the insurance market and how insurers are trying to keep pace with the ever-evolving risk exposures created by the non-stop advancement of technology and the non-stop activities of cyber criminals.

Moderator/Panelist: Lynda A. Bennett, Partner, Insurance Recovery, Lowenstein Sandler LLP


  • Jonathan Kurens, Senior Vice President, Marsh USA Inc.
  • Tamara Snowdon, Senior Vice President, Marsh USA Inc.; FINPRO, Cyber Center of Excellence


Join us for our 4th Annual Cyber Day. This half-day program features sessions led by Lowenstein lawyers and other industry leaders who will discuss how companies can navigate cybersecurity, blockchain, and data privacy issues as well as the cyber insurance market in order to operate in a post-GDPR business landscape.

Topics include:

  • Cyber Risks: Where to Find Coverage and How to Maximize Recovery for Cyber Claims 
  • A Global Perspective: Status Report on the Impact of GDPR and What You Need to Know About the Evolving U.S., Federal, and State Data Privacy Laws
  • Government Investigations: How to Prepare and What to Do
  • Beyond Bitcoin: An Introduction to Blockchain

Lowenstein speakers include: 

The program runs 7:30 a.m.-2 p.m. Program location: Lowenstein Sandler LLP, One Lowenstein Drive, Roseland, New Jersey 07068; 973.597.2500. CLE credit available.

The New Jersey Attorney General and NJDEP Commissioner have announced a “new day” in the state’s effort to recover natural resource damages. Attorney General Grewal stated, “We are going to hold polluters accountable – no matter how big, no matter how powerful, no matter how long they’ve been getting away with it. And we’re sending a message to every company across the state: if you pollute our natural resources, we are going to make you pay.”

Join us for a program discussing:

  • An overview of the legal and technical issues that form the basis of a natural resource damage claim
  • Lessons from one of the biggest settlements achieved to date on such a claim from the current and former state representatives who oversaw that settlement
  • Perspectives from the Attorney General’s office
  • The availability of insurance coverage for such claims

We will also address certain ethical issues that must be considered in defending a natural resource damage claim, including director and officer liability and the potential for conflicts, and managing expectations in the face of high profile, high stakes litigation.


  • David Apy, Assistant Attorney General in Charge, Environmental Practice Group, Office of the Attorney General, Division of Law
  • Lynda A. Bennett, Partner; Chair, Insurance Recovery Group, Lowenstein Sandler LLP
  • Frank Piccininni, Senior Attorney and Account Executive, SterlingRisk Environmental and Professional Services
  • Christopher Porrino, Former Attorney General of New Jersey; Partner; Chair, Litigation Department, Lowenstein Sandler LLP
  • Richard F. Ricci, Partner; Chair, Environmental Law & Litigation, Lowenstein Sandler LLP
  • Ken Siet, Vice President and Principal-in-Charge of TRC’s Engineering, Consulting and Remediation (ECR) Mid-Atlantic Region

Location: Lowenstein Sandler, One Lowenstein Drive, Roseland, New Jersey 07068; 973.597.2500

To register: Email [email protected]


Lynda A. Bennett joins a panel to speak about 2019 Audits and Initiatives at the Greater New York Hospital Association's Cyber Insurance Webinar. 

GNYGA and the Healthcare Association of New York State will co-host a webinar featuring representatives from Livanta, New York State's Quality Improvement Organization (QIO). Livanta representatives will discuss their 2019 audit focus, Hospital-Issued Notice of Non-coverage, and best practices in compliance.

The webinar takes place at 11 a.m.-12:30 p.m. on March 5, 2019. 

Lowenstein's Zarema A. Jaramillo introduces opening keynote speaker Attorney General Loretta Lynch, former U.S. Attorney General, and Lynda A. Bennett and Doreen M. Edelman are panel moderators at the Women, Influence & Power in Law Conference.

Thursday, October 17, 2019

9:15 a.m.: Opening Keynote: A Conversation with Attorney General Loretta Lynch

Introduction of Keynote Speaker: Zarema A. Jaramillo, Partner, Lowenstein Sandler LLP

Keynote Speaker: Attorney General Loretta Lynch, former U.S. Attorney General

Attorney General Loretta Lynch shares her journey to become the first female African American Attorney General and how businesses can navigate and thrive in a changing global workforce.

1:30-2:30 p.m.: IoT Liability Issues

Moderator: Lynda A. Bennett, Partner, Lowenstein Sandler LLP


  • Carolyn McNerney, Senior Counsel, LG Electronics USA
  • Tamara Snowdon, Esq. CIPP/US, Senior Vice President, Cyber Practice, Marsh JLT Specialty, Marsh USA Inc.
  • Patti Sunar, Assistant General Counsel, Litigation, Verizon

The connectivity allowed by the Internet of Things (IoT) may make our personal and professional lives much easier, but for liability attorneys, it raises some red flags. Plus, with a lack of guidance from federal regulators like the FTC and the FCC, there are often more questions than answers. If a data breach occurs at a business, who is liable? Does liability fall on the business, the manufacturer of the device, or the creator of the software? More cases like this are beginning to arise, and this session will examine liability concerns in the age of connectivity. Topics include:

  • Understanding the differences for the legal department between IoT and other recent tech advancements
  • Review Current guidelines around IoT liability and potential legislation
  • Strategies for protecting your organization

Friday, October 18, 2019

11:20 AM - 12:20 PM: Tariffs, Trade Wars & the Global Supply Chain

Moderator: Doreen M. Edelman, Partner, Lowenstein Sandler LLP


  • Karen Killeen, Vice President and Deputy General Counsel, BASF Corporation
  • Jennifer Morales, Senior Counsel – Litigation, GE Aviation

The recent rise in tariffs affecting global trade is having a huge impact on both local and international businesses–not to mention, there’s been discussion of a renegotiation of NAFTA and proposal of pulling out of the WTO. Other countries have begun to retaliate on the high tariffs imposed by the United States with counter-tariffs on American goods, thus creating a “trade war.” Many local corporations are being affected as the cost continues to rise, which also impacts the cost to the consumer. So what are the options for companies to keep the costs down? Aside from asking for exemptions on certain tariffs, what can GCs and in-house counsel do at this time? And what are the legal implications of these new sanctions for companies with overseas operations? This session will explore how trade wars are impacting the decisions that GCs must make for their businesses, and we will also discuss potential solutions for organizations with global operations.

Washington Marriott Wardman Park
, 2660 Woodley Rd NW, Washington, D.C.

In-house lawyers in industries far beyond the tech world–such as financial services, pharmaceuticals, insurance, and consumer electronics, to name only a few–need practical guidance on the many ways that cybersecurity and privacy issues can affect all stages of business, from the valuation of data as an asset to the allocation of risk.

In response to this need, Lowenstein Sandler has expanded our annual program to include an even deeper dive into cybersecurity issues of special interest to GCs, CPOs, and CIOs. Our interdisciplinary group of privacy and data security specialists has teamed with in-house counsel to develop programming aimed to help corporations and executives navigate the potential risks, regulations, and benefits at stake, as well as best practices to address these issues.

Topics include:

  • Data Protection Law Developments: A Year in Review and What to Expect in 2020
  • Artificial Intelligence: Preparing for the Future of Business
  • Cyber Insurance: What It Covers, Why You Need It, and How To Get It
  • Blockchain Promises Solutions Across Industries, But Will it Deliver?
  • Telehealth and Telemedicine: The Future of Health care?
  • Biometric Data: From Finger Scans to Facial Recognition, a Deeper Dive into Artificial Intelligence
  • State Privacy Laws: A Deeper Dive into New and Amended U.S. State Privacy and Cybersecurity Laws

Program time: 7:30 a.m.-2:15 p.m. 

Program location: Lowenstein Sandler LLP, One Lowenstein Drive, Roseland, New Jersey 07068; 973.597.2500. 

CLE credit available.

Wi-Fi access and conference space will be available to take phone calls and stay connected to your workday.

Lynda A. Bennett joins a panel addressing disaster preparedness for lawyers.

All lawyers, whether solo practitioners or members of larger firms, need to be prepared to survive the unexpected disaster. Whether it is a physical catastrophe, like a hurricane or a burst of a pipe in your office space, or a data breach jeopardizing confidential information and client files, there are time-proven procedures and safeguards that you can put in place to minimize the effect of the disaster and insure that your business is up and running quickly.

This luncheon webinar will be led by The Honorable Ronald J. Hedges, former US Magistrate Judge. Judge Hedges will be joined by Lynda Bennett, Esq., a private practice attorney who focuses her practice on insurance recovery and Carrie Parikh, Esq., a seasoned data and privacy professional with the State Office of Information Technology. Together they will delve into the concerns and practices all lawyers and firms should have in place in the event of a disaster.


  • Lynda A. Bennett, Esq., Partner, Lowenstein Sandler LLP
  • Carrie Parikh, Esq.Chief Operating Officer/Chief Data and Privacy Officer
    Office of Information Technology, State of New Jersey

Companies are facing unprecedented challenges in responding to the coronavirus pandemic. This crisis is having a direct and immediate impact on the workforce, financing, corporate governance, insurance, the supply chain, and data security.

Join us for a webinar to address the issues arising from coronavirus fallout. Our panel of leaders from a broad-range of practices will give an overview of critical points on which corporate leadership needs immediate guidance.

Topics will include:

  • Employees: how should companies handle employment issues such as confidentiality, exempt/non-exempt issues, paid (and unpaid) time off, salary reductions, furlough, and layoffs?
  • Insurance: what coverage is available, and looking around the corner, what renewal considerations should companies be thinking about?
  • Vendors and Suppliers: Force majeure in contracts, and identifying warning signs of a financially distressed customer and risk mitigation tools
  • Credit Facilities: Availability of funds, notification requirements, financial reporting, financial covenant compliance and communicating with lenders
  • IT and Data Security: Possible fraud and cyber threats especially with remote working
  • Corporate governance: What should boards of directors be doing?

Our attorneys are fielding myriad questions from clients and friends of the firm on how to navigate the unprecedented challenges presented by COVID-19. Dealing with work-from-home (WFH), balancing employee confidentiality with protecting workforce health, interacting with lenders, being vigilant against cyber fraud, and making sure our boards of directors are engaged and discharging their duty of care, are among the many topics that the panel will discuss and respond to questions. We are very much looking forward to an interactive discussion and strongly encourage you to submit questions here in advance of our program.

Program timing: 11:30 a.m. - 1:00 p.m. EST

Lowenstein lawyers from a broad array of practice areas address the key legal and business issues arising from the Coronavirus/COVID-19 crisis. Our speaker provide an overview of critical points on which corporate leadership needs immediate guidance.

Topics include:

  • Employment & HR Issues
  • Insurance
  • Customer/Supplier Financial Distress
  • Credit Agreements
  • Data Security
  • Boards of Directors Concerns


With a hardening insurance market, only compounded by the effects of the COVID-19 pandemic, now is the ideal time for businesses to take a critical look at their insurance program and evaluate open and potential claims. There is no question that upcoming renewals will pose significant challenges for all companies and there are best practices to consider with respect to how to be perceived as a desirable risk to existing and prospective insurers. On the claims front, our clients are carefully reviewing the scope of available business interruption coverage for their COVID-19-related losses and are seeing a noticeable uptick in lawsuits, demand letters, and circumstances that may lead to the assertion of future claims.

Please join us for a webinar that will provide insightful information and guidance on the best steps to take to secure maximum value from your insurance assets and shore up your insurance program notwithstanding the current challenging market conditions.

Topics to be covered:

  • Renewals in the wake of the hard insurance market
  • Business interruption
  • Employee-related claims
  • Cyber insurance

Time: 12-1 p.m. EDT

Those interested in registering may contact [email protected].


CLE Credit Provided by Lowenstein Sandler

  • This program is approved for newly admitted and experienced attorneys.
  • CA: This program has been approved for 1.0 CA General CLE credit.
  • NJ: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 1.2 hours of total CLE credit. Of these, 0.0 qualify as hours of credit for ethics/professionalism, and 0.0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law, municipal court law, and/or matrimonial law.
  • NY: This program has been approved for 1.0 New York credit in the Areas of Professional Practice.

Professional Associations

New Jersey State Bar Association
  • Member, Insurance Law Section Executive Committee
  • Past Chair, Insurance Law Section
  • Past Chair, Insurance Law Section Newsletter
New Jersey Women Lawyers Association
  • Board Member
  • Strategic Planning Advisor
  • Past President
Continuing Legal Education
  • Frequent lecturer on insurance-related topics
The Leukemia and Lymphoma Society, New Jersey Chapter
  • Board of Trustees
Morris Catholic High School
  • Board of Trustees

Professional Activities and Experience

  • Chambers USA: America's Leading Lawyers for Business - (2013-2020) - Bennett
  • Crain's: 2019 Notable Women in Law - New York (Bennett)
  • Top 100: New Jersey Super Lawyers - Lynda Bennett
  • Top 50 Women: New Jersey Super Lawyers (2019) - Lynda Bennett
  • New Jersey Super Lawyers (2007-2019) - Lynda Bennett
  • American Bar Foundation - Lynda Bennett
  • The Best Lawyers in America - L.Bennett
  • Best 50 Women in Business - NJBIZ - 2016
  • Distinguished Service Award - The New Jersey Institute for Continuing Legal Education - 2014
  • New Jersey Women Lawyers Association Women's Initiative and Leaders in Law (WILL) Platinum Award - New Jersey Women Lawyers Association - 2013
  • Professional Lawyer of the Year Award - New Jersey Commission on Professionalism in the Law - 2008


First Employee Lawsuit Filed Seeking to Avoid the Workers' Compensation Exclusivity Bar for COVID-19-Related Injuries
Lowenstein Sandler LLP, April 2020

Among the many issues employers are struggling with in the midst of the current COVID-19 crisis is the risk of harm to an essential employee who is compelled to report to work. While, of course, most employers are proactively taking measures to minimize an employee’s risk of contracting the virus, there is a risk of exposure and illness inherent in coming to work...

D&O Insurance Renewals: What Corporate Policyholders Need to Know in the “New Normal”
Lowenstein Sandler LLP, April 2020

Many companies are focused on their business interruption coverage in the face of coronavirus disease 2019 (COVID-19). But they must not let management liability insurance be a blind spot. Companies that are renewing their management liability insurance program (directors’ and officers’ (D&O), employment practices, and fiduciary liability) must be prepared for a hard look by underwriters as they react to COVID-19 and consider its effects going forward...

Advice to Cyber Insurance Buyers: You Are Not Alone
Lowenstein Sandler LLP, May 2017

One of the first steps in the underwriting process requires the company to submit an application to the insurer. The application will seek baseline information about the company’s size, number of records maintained, type of information maintained, security policies and procedures, and disaster planning. The company’s ability to answer those questions with complete and detailed information is critical...

Additional Articles

As 2017 closes, companies continue to grapple with how to manage and insure the many risks presented by privacy and cyber security issues. Companies are seeing those risks multiply at a dramatic pace as the “internet of things” becomes ubiquitous. Many companies believe they will, or should, be covered for claims related to the internet of things if they have purchased traditional insurance policies and a dedicated cyber policy. However, the availability of coverage for an internet of things claim may not be so clear, especially if careful underwriting and coordination of the relevant insurance policies have not been undertaken. 

When a company is in bankruptcy, insurance policies are a critical, but often overlooked, asset of the estate. For instance, policy proceeds may be significant, and possibly the only, source of recovery for some creditors. For debtors, company executives increasingly need to rely on the protections of directors and officers (D&O) insurance to defend and resolve creditors’ claims that their mismanagement drove the company into bankruptcy.

Unlocking the benefits and protections of insurance often presents challenges. Insurers do not just ‘open their checkbook,’ and they often insist on strict compliance with policy terms and conditions, particularly if doing so allows them to deny coverage. Therefore, bankruptcy practitioners must carefully navigate the road to coverage, avoiding pitfalls along the way that could lead to a claim denial. While there are many potential pitfalls, there are four common ones for every bankruptcy lawyer to be aware of: 1) the assignability of insurance proceeds; 2) the impact of a broad release provided to directors and/or officers; 3) the characterization of allegations against an insured and settlement payments, and 4) judicial limitations on executives’ access to defense coverage.

This article was originally published in the February 2019 issue of New Jersey Lawyer magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.

“Titanic.” We’ve all seen it and enjoyed watching the ill-fated love affair between Rose and Jack develop during the course of an over-length movie. We watched Rose grapple with the tough decisions between living up to others’ expectations and following her heart. We rooted Rose on as she decided to spurn her high-society fiancé and defy her mother to be with her true love. And, in a true Hollywood twist of fate (spoiler alert!), we watched in horror as Rose’s happiness is shattered when Jack slowly sinks to the bottom of the ocean.

However, the most compelling scene of the movie takes place at the very end, when the camera pans Rose’s room and we see that, after she survived the Titanic and lost the love of her life, Rose went on to live a full life. She married and had children, who gave her beautiful grandchildren. She learned to ride a horse even though Jack was not there to teach her. And Rose likely refined her spitting technique to be truly award worthy (and note, we did not say “like a man”). In other words, Rose experienced a number of highs and lows in her life. She faced many difficult decisions and things didn’t always work out the way she expected or wanted, but she kept moving forward.

Recently, we have seen an uptick in coverage disputes with insurers that are centered on the insurer’s defense obligation. Many policyholders do not understand their rights with respect to the selection of defense counsel, the hourly rates charged by defense counsel, whether insurer litigation management guidelines are enforceable, and the scope of available defense coverage for a “mixed” claim. This article addresses some of the common misconceptions held by policyholders and provides practical tips about how to engage with insurers on these issues.

Myth 1: The insurer always gets to select defense counsel

Many policyholders mistakenly believe that if a claim is covered by an insurance policy, then the insurer has the exclusive right to choose the lawyers who will defend the case. However, that is not always true.

As a preliminary matter, only certain types of policies contain a “panel counsel” provision that expressly and contractually gives the insurer the right to choose counsel.

When a policy does not contain an express panel counsel provision, selection of counsel is a point that can, and should, be negotiated with the insurer. Moreover, even when a panel counsel provision exists in the policy, insurers may agree to approve the use of nonpanel counsel when policyholders agree to certain parameters with respect to the handling of the defense.

In addition, when an insurer agrees to provide a defense subject to a reservation of rights – whether or not there is a panel counsel provision in play – courts have determined that the policyholder has the legal right to select conflict-free and independent counsel. In fact, some jurisdictions have established a policyholder’s right to independent counsel by statute.

Policyholders also should be aware that they can avoid the selection of counsel dispute at the policy placement stage by requesting an endorsement to preapprove law firms to serve as defense counsel. However, this approach may come with some unexpected negative consequences if the policyholder needs the option of choosing different defense counsel depending on the nature of the claim asserted.

Myth 2: The insurer has the unilateral right to impose panel counsel rates

In circumstances where the insurer has denied coverage or has reserved rights and nonpanel counsel is defending the claim, another common area of dispute involves whether the insurer can take the position that it will reimburse defense costs only at the rates that the insurer pays its panel counsel. While there is not extensive case law on this issue, courts generally reject the notion that insurers can establish a bright-line rule based on the volume discount rates that they have negotiated with their lawyers. Instead, courts seek to determine the prevailing market rate that is charged by capable counsel in the geographic area where the matter is pending while considering the level of complexities and magnitude of risk exposures faced in the underlying action.

The policyholder can, and should, work closely with experienced coverage counsel and their brokers to develop the data points needed to challenge panel rates and secure reimbursement at reasonable rate structures.

Myth 3: The insurer can impose litigation management guidelines on defense counsel

Once the horse trading on selection of defense counsel has ended, policyholders and their counsel next must confront the insurer’s attempt to unilaterally impose litigation management guidelines that place material restrictions on what the insurer will agree to pay for and what will not be reimbursed to defend the case. Oftentimes, the guidelines are not a provision of the insurance policy that was purchased and were not agreed to by the policyholder. Nevertheless, the insurer contends the guidelines now govern the defense.

While the general idea behind the guidelines is a laudable one — that is, to put mechanisms in place to control litigation costs and expenses — the reality is that the guidelines are often draconian in nature and can be particularly unworkable in the context of a large, complex litigation.

Policyholders should understand that the guidelines can, and should, be challenged with insurers. Indeed, some courts have determined that insurer litigation management guidelines are unenforceable because they are not agreed-upon terms of the policy and they impede a lawyer’s ability to zealously defend his or her client. Other jurisdictions have issued ethics opinions warning defense lawyers against following the guidelines to the extent that doing so would impede the lawyer’s professional judgment.

In many instances, policyholders and insurers can work together to develop a collaborative and agreed-upon approach to defend the case, and the guidelines can be customized to address the specifics of the underlying action. Clear, open and regular communications about these issues are the key to successfully managing them.

Myth 4: The insurer can do simple math to reduce its defense

obligation for a ‘mixed’ claim Another issue that regularly arises with respect to the scope of the insurer’s defense obligation relates to a “mixed” claim. Think of the all-too-common “everything and the kitchen sink” complaint that includes 12 different legal causes of action and is asserted against a laundry list of defendants.

Some of the legal causes of action and some of the defendants are potentially covered by the insurance policy, while other causes of action and defendants are not. And even though the complaint is a “mishmash,” what is really driving the legal dispute is the potentially covered claim or claims asserted against the potentially covered policyholder or policyholders.

Oftentimes, the insurer attempts to artificially reduce its defense obligation by engaging “simple” math; for example, since only four of the 12 counts are potentially covered, the insurer will agree to pay one-third of the defense costs. However, that is not how the insurer’s defense obligation is established, nor is that how allocation law works. As a preliminary matter, the insurer’s duty to defend is broader than its duty to indemnify. Nearly every jurisdiction across the country recognizes that if there is one potentially covered claim alleged in the complaint, then the insurer has an obligation to defend the entire action.

Moreover, many courts have held that if defense costs do “double duty” — that is, provide a benefit for both the covered and uncovered claims/defendants — then the insurer must pay those defense costs.

In other words, “simple math” does not rule when a mixed claim is presented. A careful analysis of the facts and circumstances of the underlying action is required, and policyholders must be armed with the appropriate legal authority to reject the insurer’s attempt to artificially minimize its defense coverage obligation by tallying the covered and uncovered counts/defendants.


Defense coverage is a critical aspect of any company’s risk management program.

However, buying insurance policies and making claims are not enough to ensure that the company will be fully, fairly and immediately defended by its insurer when a complaint is served. In order to navigate these murky waters, policyholders are well served to engage experienced coverage counsel to negotiate these critical issues early on so that the policyholder and its insurers can then collaboratively focus on the task at hand — defending and resolving the underlying action.

This article originally appeared in August 1, 2019 issue of Business Insurance.


Recently, the Delaware Superior Court issued an opinion that has far-reaching consequences for directors’ and officers’ liability (“D&O”) policyholders and insurers.1 

The court held that the definition of “Securities Claim” in a D&O policy includes a shareholder appraisal action. The court also held that prejudgment interest can be covered “Loss” even if the policy does not provide coverage for the loss giving rise to the prejudgment interest, i.e., merger value consideration. Finally, the court held that the policy’s requirement that the insured obtain the insurer’s consent before incurring defense costs (the “Consent Clause”) included an implied prejudice requirement, i.e., a breach is immaterial if it does not prejudice the insurer.  


In March 2016, an affiliate of the private equity firm Vista Equity Partners acquired the formerly publicly traded company Solera Holdings, Inc. (the “Insureds”) for an agreed merger price of $55.85 per share, or approximately $6.5 billion. At the time of the merger, the Insureds had a $10 million primary D&O policy (the “Policy”) and $45 million of excess follow-form policies sold by various insurance companies (the “Insurers”).  

Four days after the merger, several of the Insureds’ previous shareholders (the “Petitioners”) filed an appraisal action (the “Appraisal Action”) in the Delaware Court of Chancery, seeking a merger valuation of $84.65 per share. The Insureds did not notify the Insurers of the Appraisal Action until January 2018, after much of the litigation, including trial, was complete. In April 2018, the Insurers denied coverage for the Appraisal Action. Then, in July 2018, the Chancery Court determined that the fair value of the Petitioners’ shares was $53.95 per share (less than the merger price) and ordered the Insureds to pay the Petitioners approximately $38.4 million in prejudgment interest. The Insureds incurred more than $13 million defending the Appraisal Action.  

Coverage Issues

The issues presented in Solera were threefold: (i) whether the Appraisal Action must allege wrongdoing to qualify as a “Securities Claim” as defined in the Policy; (ii) whether the Policy covered prejudgment interest on the Chancery Court’s determination of the fair value of the Petitioners’ shares, even though the Policy did not cover the value of the shares; and (iii) whether the Insureds’ breach of the Consent Clause, stemming from their delayed notice, caused material prejudice to the Insurers such that coverage for the Insureds’ defense costs was precluded.  

The Court's Analysis, Findings, and Holdings

Regarding the first issue, the Insurers argued that the Appraisal Action was not a “Securities Claim” under the Policy because the definition required an “actual or alleged violation” of a securities law. Specifically, the Insurers contended that “violation” requires wrongdoing and an appraisal action does not require an allegation of wrongdoing. The court, however, relied on long-established rules of insurance contract interpretation and stated that courts must “first seek to determine the parties’ intent from the language of the insurance contract itself.” The court then found that the plain meaning of the undefined term “violation” in the Policy was broader than “wrongdoing” and that the Appraisal Action was inherently an allegation of the Insureds’ violation of the Petitioners’ right to receive the fair value of their shares. Therefore, the court held that the Appraisal Action qualified as a “Securities Claim” under the Policy.  

Next, the court considered whether the prejudgment interest award was a “Loss” as defined in the Policy. The Insurers argued that the interest could not be a “Loss” because the underlying amount on which the interest accrued was not a covered “Loss.” Again, the court looked to the plain meaning of the Policy, which defined “Loss” to include “pre-judgment interest . . . that [the Insureds are] legally obligated to pay.” The court readily held that the Policy covered prejudgment interest because the Policy did not limit “pre-judgment interest” in any way, such as by excluding coverage for interest awarded for an uncovered loss, e.g., the Chancery Court’s determination of the fair value of the Petitioners’ shares. Notwithstanding this finding, the court did not award summary judgment to the Insureds because it noted factual issues remained with respect to whether the Insureds could have mitigated the prejudgment interest incurred and whether the Insureds actually paid all the awarded prejudgment interest.

The last issue before the court was whether the Insureds’ nearly two-year delay in giving notice of the Appraisal Action materially prejudiced the Insurers. Notably, the Insurers did not advance a late notice argument on this summary judgment record because the Policy contained an explicit material prejudice requirement in the notice provision. Therefore, the Insurers sought to bar coverage for the prenotice defense costs by relying on the Consent Clause, which stated that the Insureds could not incur any defense costs without the Insurers’ prior consent (which consent could not be unreasonably delayed or withheld). The Insureds argued that the same material prejudice requirement that applied to the notice provision of the Policy was implied in the Consent Clause. The court agreed that a prejudice requirement must be implied in the Consent Clause to protect policyholders from the harsh result of forfeiture of coverage when an insurer is not actually harmed by delayed notice. However, the court also made clear that policyholders bear the burden of demonstrating lack of prejudice when they have breached the Consent Clause. The court admitted that the Insureds successfully defended the Appraisal Action, but it determined that summary judgment in the Insureds’ favor was premature because factual questions regarding prejudice required additional evidence to determine.  

Key Takeaways

The Solera court’s broad interpretation of “Securities Claim” to include an appraisal action that contains no explicit alleged wrongful conduct is favorable to D&O policyholders but also may lead insurers to modify the definition on future D&O policy forms. Therefore, it is critically important for policyholders to remain diligent in carefully reviewing renewal terms and conditions with qualified coverage counsel. In the same vein, policyholders should be aware of changes being made to the definition of “Loss” to address the court’s determination that prejudgment interest may be covered even if the basis for the interest award is not. Indeed, the Solera opinion includes language that could have been, but was not, used in the Policy to foreclose the Insureds’ ability to recover prejudgment interest. Finally, notwithstanding the court’s favorable finding that a material prejudice requirement applies to the Consent Clause, policyholders are still best served by providing immediate notice of claims in order to avoid the burden of explaining delay and demonstrating that insurers have not been prejudiced by it.

Important Case Update

Recently, the court took the extraordinary step of granting the Insurers’ application for interlocutory appeal to the Delaware Supreme Court. The court reasoned that its holdings that the Appraisal Action qualified as a “Securities Claim” under the Policy and that the Consent Clause implied a prejudice requirement were issues of first impression in Delaware that potentially have “broad[] implications within the insurance industry.” The court also concluded that “other insurers and insureds . . . likely will benefit from interlocutory review.” Whether or not the Delaware Supreme Court grants certification, Solera is a significant case for policyholders across the country to continue to monitor.2


1 Solera Holdings, Inc. v. XL Specialty Ins. Co., 213 A.3d 1249, 2019 WL 3453232, at *1 (Del. Super. Ct. 2019), opinion clarified, No. N18C-08-315 AML CCLD, 2019 WL 4120688 (Del. Super. Ct. Aug. 29, 2019) (Solera).

2 Solera Holdings, Inc. v. XL Specialty Ins. Co., No. N18C-08-315 AML CCLD, 2019 WL 4733431, at *1 (Del. Super. Ct. Sept. 26, 2019).

About five years ago, several associates across different practice groups within my firm approached me separately to ask why our firm did not have an active women’s initiative. They expressed concern that junior women did not really know or have access to the women partners. They also noticed that there were built-in informal forums for our male colleagues to gather and get to know one another (e.g., firm softball team, basketball team, golf outings). What those women did not realize is that our firm did have a program geared toward women, but it had an external focus to put women together to network and develop business.

The need being identified by my junior colleagues was a more basic one: Women who work together share common interests, professional goals, challenges, and sometimes anxieties. They were looking for a place where they could talk about their day-to-day issues and find out whether their experiences were unique. They wanted to know whether the more senior women within the firm had any tips or best practices to address issues in a professional and satisfying way. And at the most basic level, the women were looking for a constructive way to get out of their practice area silos from time to time to learn more about what was going on elsewhere in the firm and to have an opportunity for professional camaraderie.

So, in collaboration with those women (who included junior, midlevel, and senior associates as well as a few partners), I embarked on creating a women’s initiative very different from the ones I have read about for years and had participated in within my own firm in the past. The founding members and I started with a simple vision: to empower and support our women to achieve professional and personal success. We then developed a mission statement to guide our efforts: “To create an environment that fosters personal connections, trust, camaraderie, and networking opportunities. We will celebrate and embrace our differences. We will encourage creativity, generosity, and passion in all of our professional and personal endeavors.” 

In taking these preliminary steps, we made the conscious and intentional decision to be internally focused, meaning our programs and events were directed toward making sure that women from different practice areas had places to meet one another and forums to discuss firm life as well as career development and advancement. We acknowledged that business development and building core competencies are crucially important to a woman’s professional life, but those issues would have a secondary focus for our group. We would address those skills through our women sharing their own personal experiences about rainmaking and networking rather than focusing on external networking events or bringing in consultants to lecture on such topics. We wanted our women to start building authentic and genuine relationships that would pave the way for honest, “real” talk. We understood that not all women within the firm would be interested in actively participating in the kind of initiative we were planning, and we accepted that. We wanted to find what I often refer to as “the coalition of the willing”–whether that was 40 women or four–and build our community from there. 

To get started, we knew our first program could not be a formal panel presentation geared toward having our women share their most acute confidence issues, practical workplace tensions, or managing “work-life balance.” Instead, we circulated an email to all women attorneys announcing the creation of the initiative and provided a survey to gauge interest and needs. The response was extremely positive, so we got to work developing a realistic calendar of events.     

We purposefully started small, with largely social gatherings (e.g., a standing “no agenda” monthly lunch and cocktail events). Our first formal programs were panel discussions that comprised only our women talking only to our women. We shared five things we wished we had known earlier in our careers and how to develop, maintain, and cultivate a network. We were intentional about populating the panels with women from different practice areas across our different office locations. The panelists had varying levels of seniority. The moderators of the panels were among our most junior women attorneys. This was done intentionally to allow our junior women to have an early leadership opportunity and to communicate to our audience the broader message that junior women can and should feel free to speak to more senior women in the firm. 

Once a positive buzz started to build around our women’s initiative, we added programs that had a decidedly more provocative bent. We started talking about issues that exist in every large law firm but are taboo–for example, how to respond to an unexpected or unwelcome remark that is made by a colleague, an adversary, a client, or a judge. We also addressed gender difference associated with the attorney review process and provided practical tips about how to discuss successes and challenges during a review. When these topics were teed up, very clear ground rules were established at the beginning of the program: An honest conversation was going to take place, and to facilitate that conversation, confidentiality must reign supreme. We also made clear the conversation was taking place in a “no judgment zone” because these topics never conclude with a right or wrong answer. Women partners often started these discussions by sharing personal stories–of both successes and failures in addressing issues in the moment. Once the partners shared, some of the associates and counsel in the room shared too. More important, many junior lawyers in the room did not share anything. They listened. Sometimes they followed up after the program was over. Each of them was able to find women who had similar questions, concerns, and approaches to life because, as we developed programs like this, we were intentional about putting a mix of introverts and extroverts on our panels. We wanted to make sure that our attendees would be able to find someone they could relate to and feel comfortable speaking with. In a particularly thoughtful fashion, we also put “plants” in the audience, arming them with questions that we strongly suspected women wanted to ask but might be afraid to in a larger setting. This, too, opened the floodgates of conversation and empowered more women to speak.

With each year, our women’s initiative has grown by leaps and bounds. We have evolved to tackling even more challenging topics, like how to address mental health while continuing to function in the hard-charging and demanding profession we have chosen. We also have hosted collaborative discussions where we have shared strategies about how to remain resilient in the face of missteps and disappointments. We are able to have these conversations only because we have spent years building our trust circle and evidencing to each other our unwavering loyalty to our confidentiality commitment. 

All the while, we have remembered our roots: Women who know and like each other at work will have greater connection to their workplace and will perform at higher levels as a result. We have stayed true to those roots by having an annual dinner that includes women across all our offices, in dinner groups with no more than eight women. The dinner assignments are made to ensure that attendees are in different practice areas, come from different offices, and have varying levels of seniority. We empower our junior women at those dinners to be table captains and lead discussions of both personal and professional topics. In addition, we host one “light and breezy” event each year where our women can engage their creative side and have a casual evening of fun, e.g., a crafting event. Finally, to create a culture of inclusion among our women, we have devised an “Ambassador Program,” where midlevel to senior associates are assigned to welcome new women who have joined the firm. Our ambassadors are tasked with writing a welcome note and delivering a specially branded women’s initiative gift. The ambassadors then make sure that the new hires are aware of upcoming women’s initiative events and offer to bring them to those programs and facilitate introductions to other group members.   

I also have developed and implemented “shout out” emails that are blasted to all women’s initiative members about once per quarter. These emails highlight the accomplishments of our women when they close a deal, win an oral argument, take their first deposition, land a new client, receive an external recognition, add value to the firm through work on another committee or initiative, and the like. No win is too big or too small for inclusion in the email. And again, the emails showcase women from all practice areas, all offices, and all levels of seniority. Of course, the recipients of the shout-outs are always appreciative and grateful for the public recognition that they have received, because women are notoriously challenged in the realm of self-advocacy. However, an even bigger benefit in sending these emails is the impact that they have on the women in the firm who receive and read them. They routinely tell me that it makes them proud to work with and among such accomplished women. They also tell me that it makes them want to do more and be better so they, too, can get some shout-out love. But my greatest joy has come from the women who are learning the lesson of the shout-out email when they reach out to tell me something good about themselves, i.e., they have stepped up to the megaphone to proudly share an accomplishment–oftentimes a first and important step toward empowerment and confidence for them.

February 2020 marks the five-year anniversary of our women’s initiative, and I cannot be more proud of what we have built and sustained. I have made many new friends, and even as I enter my 26th year of practice, I continue to learn from my colleagues new ways to enjoy practicing as a woman in Big Law. I am confident that we are all better because we have each other and our women’s initiative. 

So, what is the secret sauce of a successful women’s initiative? 

First, a leader who is passionate about paving the way for women to embrace their confidence and secure the tools needed to achieve career goals. She must know how to empower women by sharing her own personal experiences but also understand that war story monologues can be counterproductive. To move the needle, the leader must create forums for conversation and facilitate active participation by all members.

Second, a collection of associates who are eager for early leadership opportunities and understand the importance of community. These women are likely to be among your organization’s highest achievers and they are going to make the time, over and above their billable hour responsibilities, to participate in a labor of love that will enrich their career development. 

Third, it is crucially important to have a clear vision and consistent implementation of that vision through your programming and events. Many women’s initiatives struggle and fizzle out because they strive to do too much and the “perfect” becomes the enemy of the good. Be intentional in the selection of your topics and your panelists. Be realistic in terms of how much time busy attorneys will be willing and able to commit to your programming. Be inclusive of all personality types and be cognizant of the varying personal lives and commitments of your members. 

Fourth, make sure your membership has direct and regular input into your programming. Short surveys are an important tool, and so is being responsive to member-suggested discussion topics because that creates buy-in and a sense of ownership among all members of the initiative. 

Finally, the cornerstones of sustained success are making sure that your initiative is based on trust and delivers value to members who are “giving up” billable hours in order to participate. While it took some time for us to develop those characteristics, the reason our initiative is robust and our events are routinely well attended is because we are able to engage in real talk about the issues that are most important to our members and their career development. We cannot and do not promise to solve problems or eliminate challenges. Instead, we strive to provide actionable advice and supportive listening that allow members to know they are not alone and they can achieve their career goals.

As demonstrated above, leadership, collaboration, inclusivity, and mutual respect are the key ingredients of the secret sauce. Women’s initiatives that combine these ingredients can be successful regardless of their size. And it is equally important to remember that success is not in numbers–not the number of programs you offer or the number of members you have. Success is offering a few events each year that have great impact by teaching women about themselves and others and equips them with one or two tools to enhance who they are. Success is when women learn and grow from and with one another, genuinely and organically, and the organization’s greatest role in that success is offering them the space and support to do so.  

Download a PDF of the article here.

After practicing for more than 25 years as an insurance coverage litigator, I have experienced my fair share of trials by fire taking depositions, arguing motions and negotiating complex settlement structures. Along the way, I’ve noticed that I have often confronted unique challenges because I have been the only woman in the room. I’ve also noticed that women adversaries have encountered similar issues, particularly when we are the most junior attorney involved with a matter. There is no place for bullying in the legal profession, and it will come to an end only when we speak to and empower our junior women attorneys to overcome these challenges. No gesture is too small to provide a junior attorney with the strength and resilience she needs to bounce back.

I remember the first time I was bullied. I was too inexperienced to understand that my gender played a role. A few months after I joined a new firm, I was involved in a discovery dispute. My adversary, a male attorney about 10 years my senior, moved to compel and sought sanctions against me and my new firm. I was absolutely terrified and was convinced I would immediately be fired. Instead, a senior partner came with me to argue the motion and told me he would intervene only if the court entertained the specious sanctions request. When we appeared for the motion, the male judge refused to acknowledge my presence at any point during the argument. The partner repeatedly told the judge that I was arguing the discovery aspect of the motion, and yet the judge refused to hear from me.

Eventually, the judge denied the discovery motion and the sanctions motion and yet, despite the victory I was mortified. However, in a total surprise move, my adversary stopped me in the elevator to apologize. He said he felt terrible that the judge treated me with a level of disrespect he had not seen in his 10-plus years of practice. Even more, he apologized for his scare tactic strategy of trying to secure the discovery with a meritless sanction motion. He saw something and said something. His actions went a long way toward softening the ego blow of the judge’s refusal to see me, and they provided me with the perspective that some attorneys use personal attacks as a means to secure a litigation advantage, something I promised myself I would never do.

I had a similar trying experience when I was taking one of my first depositions. The witness was a “professional” corporate designee who was sitting for his 90th deposition, while I was taking my third deposition. Suffice it to say, I was nervous. The witness was being defended by two male lawyers—national and local counsel. While I stumbled through the questions on my outline, the two lawyers snickered and giggled as the professional witness shut me down at every turn. He was more belligerent, obstreperous and nasty with each response.

After about an hour of being flustered, I called an early lunch break. The court reporter (a woman) saw something and said something. She encouraged me over lunch, saying that I should press on and do my best, which gave me the strength to take one more run at the witness. The deposition did not go too much longer after lunch, but the laughing and ridicule by my adversaries did, until the bitter end of the deposition. While there was no apology from those attorneys that day, I did have redemption vis-a-vis the local counsel many years later, when I was brought in to move for reconsideration on a motion that he lost in epic fashion. He, of course, did not recall our deposition all those years earlier. When he came to congratulate me after I won the argument, I thanked him for putting those deposition scars on my back, because without them, I wouldn’t have been able to clean up his mess that day.

As I progressed on my career path to midlevel associate, I started to experience the good fortune of having both senior men and women adversaries mentor and encourage me through challenging moments. For example, the next time I went up against a professional corporate designee witness, my male opposing counsel did not laugh or obstruct the deposition. Instead, and incredibly, he called for a break in the middle of the deposition. He took me out into the hallway to let me know that I was asking the right questions and he was impressed by my tenacity. He also gave me the perspective that eight hours of deposition testimony usually yields only one quotable quote for even the most experienced deposition takers. His few words of encouragement meant the world to me in that difficult and frustrating moment. I was grateful that he saw me doubting myself and decided to say something to keep me on the right path.

I had a similar experience with a woman co-defendant counsel at another deposition. There, I was probing a witness on a particularly sensitive aspect of the case. It felt like I was making headway with our position, and then the flow of the deposition was disrupted by the two men who were defending the witness. They launched into prolonged speaking objections every time I asked a follow-up question. As I pressed on, they threatened to get the judge on the phone or shut down the deposition, which was taking place out of state. I had never been involved in a deposition where the judge was called, and my anxiety about doing so was through the roof. At that moment, my co-defendant counsel asked for a restroom break. During the break, she pulled me aside and told me I needed to call their bluff because they were never going to end the deposition and, if they decided to call the judge, it would not go well for them. She saw something and said something. Thereafter, I strode back into the room and promptly secured a quotable quote that actually made it into the brief we eventually filed.

These days, I have accumulated enough gray hair that I do not have confidence issues when I go to a deposition or argue a motion or an appeal. I am not intimidated by what still are too many male-dominated rooms that I am in for settlement conferences and mediations. I do, however, sadly observe that the junior women coming up behind me are facing too many of the same scenarios that I have described above. Now I have assumed the role of mentor for these junior women—both inside my firm and across the aisle on my matters—sharing my experiences and how I learned from each one of them. I have called women adversaries after conference calls to commend their advocacy and tenacity when they have been bullied by more-senior attorneys. I’ve complimented very junior attorneys when they’ve made it through what is clearly one of their first depositions. And I have shared the wisdom that personal attacks and bullying by more-senior attorneys are almost always a reflection of weakness in their position and their advocacy skills and not a statement about the junior lawyers’ skill sets.

These small acts of kindness don’t make me less of an advocate for my clients. They make me a professional who wants to ensure that junior women attorneys can continue on their career path, earning their stripes without bullying or bias. The time is long overdue for all of us—senior men and women alike—who have witnessed this behavior to bring it to an end. If you see something, please say something.

Reprinted with permission from the February 26, 2020, issue of The American Lawyer. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

About five years ago, several associates within my firm approached me separately to ask why our firm did not have an active women's initiative. They expressed concern that junior women did not really know — or have access to — the female partners. They had noticed that there were built-in informal forums for our male colleagues to gather and get to know one another (e.g., firm softball team, basketball team, golf outings). While the firm did have programs geared toward women, they were externally focused on networking and business development. 

The need identified by my junior colleagues was a more basic one: Women who work together share common interests, professional goals, challenges, and sometimes anxieties. They were looking for a place where they could talk about their day to day and find out if their experiences were unique, or if more senior women within the firm had any tips or best practices. At the most basic level, the women were looking for a constructive way to get out of their practice area silos from time to time to learn more about what was going on elsewhere in the firm and have an opportunity for professional camaraderie. 

We started with a simple vision, which was to empower and support our women to achieve professional and personal success, but this vision is not the only thing that would get this newfound women's initiative off the ground. We came up with the five main elements that make up the "secret sauce" of a successful women's initiative.

The COVID-19 pandemic has created a public health and economic crisis of unprecedented magnitude. In the coming weeks and months, it will also lead to insurers, regulators and policyholders clashing over claims issues including which coronavirus-related business losses are and are not covered by commercial insurance policies. Risk management professionals must be prepared to navigate these uncertain waters or risk substantial financial damage to their companies.

New Claims Issues

Today’s most urgent battle lines are drawn around business interruption claims, which many will seek to file in connection with disruptions like office closures caused by the outbreak and subsequent civil authority orders. For policyholders, the principal challenge in establishing coverage for such claims will revolve around satisfying physical damage or loss requirements and contending with existing exclusions. While policyholders and their advocates strongly believe that COVID-19-related business interruption losses already satisfy these requirements, it is a virtual certainty that insurance carriers and their advocates will disagree. 

Regulators and government officials can intervene, and some have. In March, New York City Mayor Bill de Blasio declared that “the virus physically is causing property loss and damage.” Since then, several state and local governments have issued similar declarations and orders, and state legislatures have begun taking action. New Jersey introduced a bill that would retroactively modify policies to “read out” physical damage requirements and bar enforcement of certain exclusions. though it remains a work in progress. Lawmakers from Ohio, New York, Louisiana and Massachusetts also introduced bills of their own, and other states are likely to follow suit.

At the same time, while insurers are saying they will not pay out business interruption claims due to lack of physical damage and existing exclusions, they are also preparing to develop new coronavirus and/or much broader pandemic exclusions in future policies, with no premium reductions.

These are not the only claims issues risk management professionals will have to confront. They should expect significant premium increases and more restrictive terms across the board. In the D&O market, for instance, underwriters are already signaling premium increases in the 30% to 50% range. Claims and litigation against corporate leadership may arise from COVID-19-related disclosures, as in the case of two securities class actions filed in mid-March against Norwegian Cruise Lines and Inovio Pharmaceuticals. The wave of anticipated bankruptcy filings may also spawn claims and litigation, with creditors alleging mismanagement and other breach of fiduciary duties.

How To Prepare

To head off these new claims issues, risk management professionals can take the following actions: 

Be proactive as early as possible in the renewal process. As insurers brace for the worst, they will be more selective about underwriting new and even renewal business. Risk management professionals should reach out to their brokers and underwriters now to understand how their coverage terms, conditions and premiums may change as a result of this exposure. They should also work with coverage counsel to evaluate their potential claims and new policy forms on renewal, and push back against unfair and over-reaching changes to their coverage programs. 

Be on the lookout for new exclusions. New policy exclusions likely will not be specific to COVID-19, but broader in scope. As a result, negotiations on wording and pricing will be necessary.

Engage trade associations and lobbying power. Risk professionals should urge their trade associations and industry lobbyists to pressure legislators to act on insurance coverage issues before it is too late. After all, state regulators have the power to review and accept or reject proposed new exclusions. They can compel insurers to recognize that emergency orders mandating company shutdowns satisfied the physical damage requirement under the civil authority coverage of their policies, or to expect a detailed regulatory review process for any new exclusions, especially if those exclusions do not come with substantial premium reductions. It is crucial that regulators send a clear message on this issue now, while businesses are facing the crisis, not after it passes. 

Consider filing a Notice of Circumstances, especially if a renewal is fast-approaching. Such notices, which alert the insurer to circumstances that may produce future claims, can help lock in broader and more favorable coverage terms for current policies. However, companies should consult with their coverage counsel to determine whether and how to provide such a notice to ensure that coverage will be locked in.

The COVID-19 pandemic will continue to cause significant disruption for every industry. Like all business, insurers will do everything they can to protect their own balance sheets in response to pandemic-related uncertainty. This makes it vital that risk managers prepare for the new claims battles, and the difficult renewal conversations that will undoubtedly emerge over the coming year.

Reprinted with permission from the May 1, 2020, issue of Risk Management. © 2020 Risk and Insurance Management Society, Inc. (RIMS). All Rights Reserved. Further duplication without permission is prohibited.

To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.

WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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