In the Australian case of Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, the Australian Federal Court held Standard & Poor’s (S&P) to be jointly liable with ABN Amro Bank NV and Local Government Financial Services for losses suffered by 13 local councils, who had invested in complex credit derivatives that had been rated ‘AAA’ (the highest possible rating) by S&P. …
Read More Australian Court Rules Agencies Should be Held Accountable for Inaccurate Credit Ratings

In The Kittansett Club v. Philadelphia Indemnity Ins. Co., No. 11-11385 (Sept. 10, 2012), the District of Massachusetts ruled that a D&O insurer does not owe defense or indemnity to its insured when the insured had a duty prior to committing the alleged Wrongful Act to pay the amounts at issue. …
Read More District Court Finds No “Loss” Under D&O Policy When Insured Had Pre-Existing Duty to Pay For Tips in Dispute in Underlying Lawsuit

REMEDI, the Re/Insurance Mediation Institute, has released its forms  for a Mediation Clause and a Mediation Agreement for reinsurance disputes.  These documents resulted from a process that included consultation with senior industry executives active in reinsurance disputes. …
Read More REMEDI Issues Form Mediation Clause and Mediation Agreement for Reinsurance Disputes

The case involved a class action filed by an annuity beneficiary alleging that the insurer sold his mother and similarly situated plaintiffs a deferred annuity that did not comply with disclosure requirements of individual annuity contracts pursuant to California Insurance Code (“CIC”) §§ 10127.10(c) and 10127.13.   …
Read More US District Court in California Holds That an Out-of-State Group Annuity is Not Subject to California’s Individual Annuity Disclosure Requirements

Edwards Wildman Speakers:  Joshua P. Broudy, Alexander G. Henlin

When fire or another casualty damages a commercial building, businesses may suffer financial hardship beyond lost income and costs to repair the property. In most situations, a prudent business owner is likely to incur expenses that fall outside the scope of those normally seen in the business’s day-to-day operations. The nature of those expenses is as varied as the circumstances of each loss. …
Read More Complimentary Edwards Wildman WEBINAR: REPLAY: US Treatment of Extra Expense Claims

Liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, otherwise known as the Superfund statute) is strict, and in most cases joint and several.  The total cost for Superfund clean ups can range into the hundreds of millions and even billions of dollars. …
Read More Four Years Later: How Has BNSF Changed CERCLA Practice?

In Refcomp SpA v Axa Corporate Solutions Assurance SA [Case C-543/10], the Advocate General of the Court of Justice of the European Union (CJEU, previously known as the European Court of Justice) interpreted Article 23 of Council Regulation (EC) No. 44/2001 on jurisdiction (the Article) to mean that where the general terms of a sale of goods contract incorporated a clause conferring jurisdiction, that clause could only be relied upon against the original parties to the contract. …
Read More Europe: The Opinion of the Advocate General on applicability of choice of law clauses in the context of subrogated claims

D&O carriers and brokers will want to keep October 2013 on their calendars.  At a hearing three weeks ago, a UK High Court judge set that month as the date for trial in Graiseley Properties Limited v. Barclays Bank PLC.  It is the first civil suit against a major UK bank concerning manipulation of the London Interbank Offered Rate to be allowed to proceed. …
Read More Barclays to Face First LIBOR Trial in October 2013

According to industry press, insurance linked security and catastrophe funds are reporting varying performance results stemming from Super Storm Sandy (the “Storm” or “Sandy”), with some funds reporting greater mark-to-market losses than others. …
Read More Insurance Linked Securities Industry Reports Varied Effects of Sandy on Fund Performance in October