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Directors & Officers Liability Insurance in 2026: Market Stability Amid Evolving Risk
Q1 2026 - Coverage Matters
Members of Wilson Elser’s Directors & Officers (D&O) Liability Practice represent insurers as coverage/monitoring counsel in D&O claims as well as litigation counsel of record when a coverage dispute arises.
Our coverage analysis skills, program management abilities and significant litigation experience have contributed to successful resolutions in major securities litigation and derivative actions involving financial institutions, technology companies, pharmaceuticals companies and manufacturers.
We also directly represent boards of directors, board committees and individual directors and officers in administrative and licensing proceedings involving the SEC and FINRA, in the development of risk management protocols designed to avoid D&O claims, as well as on board governance issues. In addition, we handle D&O liability claims against nonprofit organizations, including cooperatives, associations, school boards, hospitals, and religious and charitable institutions. Our national team of D&O attorneys combines delivery of comprehensive, cost-effective legal services with a well-managed client experience. They are committed to maintaining open and timely client communications and meeting mutually agreed goals.
Our attorneys work extensively on behalf of both primary and excess insurers, issuing coverage for directors and officers liability, including entity coverage, Side “A” and “difference in conditions” policies. In addition, our members act as underwriting counsel to insurers in terms of providing advice on legal and market developments, as well as assistance with drafting policy forms and endorsements.
Members of Wilson Elser’s Directors & Officers (D&O) Liability Practice represent insurers as coverage/monitoring counsel in D&O claims as well as litigation counsel of record when a coverage dispute arises.
Our coverage analysis skills, program management abilities and significant litigation experience have contributed to successful resolutions in major securities litigation and derivative actions involving financial institutions, technology companies, pharmaceuticals companies and manufacturers.
We also directly represent boards of directors, board committees and individual directors and officers in administrative and licensing proceedings involving the SEC and FINRA, in the development of risk management protocols designed to avoid D&O claims, as well as on board governance issues. In addition, we handle D&O liability claims against nonprofit organizations, including cooperatives, associations, school boards, hospitals, and religious and charitable institutions. Our national team of D&O attorneys combines delivery of comprehensive, cost-effective legal services with a well-managed client experience. They are committed to maintaining open and timely client communications and meeting mutually agreed goals.
Our attorneys work extensively on behalf of both primary and excess insurers, issuing coverage for directors and officers liability, including entity coverage, Side “A” and “difference in conditions” policies. In addition, our members act as underwriting counsel to insurers in terms of providing advice on legal and market developments, as well as assistance with drafting policy forms and endorsements.
Jim Thurston (Partner-Chicago, IL), Melissa Murphy-Petros (Partner-Chicago, IL) and Jonathan Meer (Partner-New York, NY) prevailed on behalf of the firm’s insurance client in a case involving an insured closely held family corporation that sought coverage under its D&O policy for a declaratory judgment action seeking enforcement of the stock transfer provisions in its shareholders’ agreements. The Second Circuit affirmed dismissal of the plaintiff’s complaint on the ground that the policy’s contract exclusion precluded coverage because the declaratory judgment action – although not an action for breach of contract – arose out of the insured’s contractual obligations under the shareholder agreements. Jim and Jonathan secured the dismissal in the U.S. District Court for the Southern District of New York; Jim and Melissa handled the Second Circuit briefing, and Melissa presented oral argument. Jim and Melissa are now 8-1 before the U.S. Court of Appeals, where they have handled matters in the First, Second, and Ninth Circuits.
The appeal was covered by Law360 in their June 22, 2023, December 5, 2023, March 22, 2024, March 27, 2024, June 17, 2024 articles.
James K. Thurston, Melissa A. Murphy-Petros and Jonathan E. Meer
Melissa Murphy-Petros (Of Counsel-Chicago, IL) Jim Thurston (Partner-Chicago, IL), Daniel Tranen (Partner-St. Louis, MO), and Chad Butterfield (Partner-Las Vegas, NV) convinced the Nevada District Court that coverage was not available under a $5 million D&O policy for the putative claims by a bankruptcy litigation trustee against a former officer (Kay). Kay allegedly breached his fiduciary duties to an insured entity when he failed to uncover the criminal fraud of its former CEO (Rogas). The Court followed Wilson Elser’s arguments that Kay’s breaches were “arising from” Rogas’s prior fraud and, therefore, fell within the purview of the exclusionary language of a warranty letter executed by Rogas, wherein he represented that “no insured” (including Rogas) had knowledge or information of any act or error that might give rise to a claim. Following briefing and oral argument by Melissa, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that despite two non-imputation clauses in the policy and allegations of wrongdoing by Rogas after the warranty letter, “the broad language excluding any claim ‘arising from’ pre-execution knowledge” was sufficient to bar any coverage to Kay under the policy. This three-office victory evidences the successful collaboration between Wilson Elser’s coverage, litigation and appellate attorneys on an economical basis without having to use additional local counsel.
Melissa A. Murphy-Petros, James K. Thurston and Daniel E. Tranen