1. SRMC Montreal Conference
Le Meriden Versaille October 27-29, 2016
Recent Developments Regarding the “Disgorgement” Defense in D&O and E&O Liability Insurance Claims
Presenter: Marshall Gilinsky, Esq. (212)

2. Marshall Gilinsky, Esq. 212) 278-1513 mgilinsky@andersonkill.com
Your Speaker
Marshall Gilinsky, Esq. 212)

3. The Origins of the Defense
Level 3 Communications, Inc. v. Fed. Ins. Co., 272 F.3d 908, 911 (7th Cir. 2001)
“That can’t be right.”

4. The Deluge
Bank of the West v. Superior Court, 833 P.2d 545 (Cal. 1992)
Executive Risk Indem., Inc. v. Pacific Educ. Servs., Inc., 451 F. Supp.2d 1147 (D. Haw. 2006)
CNL Hotels & Resorts, Inc. v. Twin City Fire Ins. Co., 291 F. App’x 220 (11th Cir. 2008)
In re TransTexas Gas Corp., 597 F.3d 298 (5th Cir. 2010)
Ryerson Inc. v. Federal Ins. Co., 676 F.3d 610 (7th Cir. 2012)
Dobson v. Twin City Fire Ins. Co., 590 Fed. App’x 687 (9th Cir. 2015)

5. Is It Disgorgement?
J.P. Morgan Securities Inc. v. Vigilant Insurance Co., 992 N.E.2d 1076 (N.Y. 2013)
William Beaumont Hospital v. Federal Insurance Co., No. 11 Civ , 2013 U.S. Dist. LEXIS (E.D. Mich. Mar. 13, 2013)
Fidelity Bank v. Chartis Specialty Insurance Co., No. 12 Civ. 4259, 2013 U.S. Dist. LEXIS (N.D. Ga. Aug. 7, 2013)

6. The Evolving Wrongful Acts Exclusion
“in fact”
“final adjudication”
“final adjudication in the underlying action”

7. The Policy Mechanics Definition of “Loss” Wrongful Acts Exclusion
Consent Provision

8. The Pendulum Swings?
U.S. Bank N.A. v. Indian Harbor Ins. Co., 68 F. Supp. 3d (D. Minn. 2014); U.S. Bank N.A. v. Indian Harbor Ins. Co., 2014 U.S. Dist. LEXIS (D. Minn., July 3, 2014)
Gallup, Inc. v. Greenwich Ins. Co., No. N14C FWW, 2015 Del. Super. LEXIS 129 (Del. Super. Ct. Feb. 25, 2015)
Burks v. XL Specialty Ins. Co., 2016 Tex. App. LEXIS 239 (Tex. App. Jan. 12, 2016)

9. Marshall Gilinsky, Esq. (212) 278-1513 mgilinsky@andersonkill.com
Thank You
Marshall Gilinsky, Esq. (212)

10. Disclaimer
The views expressed by the participants in this program are not those of the participants’ employers, their clients, or any other organization. The opinions expressed do not constitute legal advice, or risk management advice. The views discussed are for educational purposes only, and provided only for use during this session.

11. Attorney Bio Marshall Gilinsky
Marshall Gilinsky is a shareholder in the New York office of Anderson Kill and practices in the firm’s Insurance Recovery and Commercial Litigation Departments. He is also a member of the firm's Regulated Products group. During his 20-year career representing policyholders, Mr. Gilinsky has recovered hundreds of millions of dollars for his clients, successfully litigating disputed claims under a variety of insurance products, including property and business interruption insurance, commercial general liability (CGL) insurance, errors and omissions (E&O) insurance, directors' and officers' (D&O) insurance and life insurance. Mr. Gilinsky has represented clients on numerous high-stakes, complex insurance claims arising out of prominent losses such as 9/11, Hurricane Katrina, Superstorm Sandy and the “Big Dig” in Boston.