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A-Side D&O Excess DIC Highlights
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- No presumptive indemnification (coverage applies without any deductible if the entity rightly or wrongly refuses, or is financially unable, to indemnify)
- If an excess policy, there is full Difference in Conditions Coverage if underlying insurance rescinds coverage, wrongfully refuses to cover the loss, is financially unable to pay the loss, is not liable for the loss, or is subject to an automatic bankruptcy stay
- Broad definition of “claim” includes oral or written demands, civil and criminal proceedings, arbitrations, and administrative and regulatory proceedings and investigations
- Broad definition of “claim” also includes formal and informal interviews of insured persons by any governmental or self-regulatory authority
- Broad definition of “entity” includes 501(c)(3) entities sponsored exclusively by the entity and foundations, charitable trusts, or political action committees the entity controls
- Broad definition of “insured person” includes:
- Directors, officers, in-house general counsel, and managers of LLCs (and functional equivalents outside of the U.S.)
- Employees, when named as co-defendants with a director or officer
- An extension of coverage to spouses and domestic partners of insured persons
- Blanket Nonprofit Outside Position Coverage and scheduled coverage of For-Profit Outside Position Coverage
- Broad definition of “wrongful act” includes service or status as fiduciaries of employee benefit plan sponsored solely by the insured entity
- Broad definition of “loss” expressly includes:
- Punitive, exemplary, and multiple damages when insurable under the applicable law most favorable to the insured
- Loss from claims under Section 11 and 12 of the Securities Act of 1933
- Penalties under the Foreign Corrupt Practices Act
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