Paul is a partner and works on insurance coverage matters, including D&O, E&O, fiduciary, cyber and GL.  He acts as coverage and monitoring counsel for primary and excess insurers in complex coverage matters involving, among other things,shareholder actions, internal investigations, regulatory investigations and actions, professional services, ERISA class actions (including “stock-drop,” excessive fees, and cash-balance actions), and data breaches.  When coverage disputes arise and cannot be resolved informally, Paul represents insurers in coverage mediations and litigations.  Paul also has extensive experience drafting policies and endorsements for insurers.

 

In addition to working on insurance coverage matters, Paul defends individuals and companies in state and federal courts around the country against claims alleging, for example, securities fraud, breach of contract, breach of fiduciary duty, and negligence, as well as against adversary proceedings in bankruptcy court. Paul also has significant experience with Special Litigation Committees, including acting as counsel to the SLC.

 

Paul also writes about and lectures on "hot topics," trends, important developments, and other issues in the various fields in which he practices.  In addition, Paul is a Co-Chair of the D&O Subcommittee of the Insurance Coverage Litigation Committee of the ABA Section of Litigation and a member of the Computer & Technology E&O Subcommittee of the Insurance Coverage Litigation Committee of the ABA Section of Litigation.

 

 

PUBLICATIONS

Third Circuit: FI Professional Liability Policy Does Not Cover Settlement of Class Action Seeking Return of Overdraft Fees, Client Advisory (May 4, 2016) (discussing decision by the Third Circuit finding that a carve-back from loss for fees for professional services precluded coverage for the entirety of the settlement of a class action seeking the return of overdraft fees, including the award of attorneys’ fees and costs to class counsel)

 

Second Circuit Rules That D&O Policy Does Not Cover Criminal Action Against CEO Stemming From Alleged Fraudulent Business Opportunity Scheme, Client Advisory (March 9, 2016) (discussing decision by the Second Circuit finding that "prior or pending" exclusion applied to preclude coverage for criminal action due to its relationship with an earlier demand letter from a state regulatory agency)

 

U.S. Supreme Court Clarifies Pleading Standard for Section 11 Claims Based on Statements of Opinion, Client Advisory (March 25, 2015) (discussing decision by the U.S. Supreme Court addressing liability under Section 11 of the Securities Act of 1933 for statements of opinion in registration statements)

 

Wisconsin Supreme Court: Notice-Prejudice Statutes Do Not Supersede Reporting Requirements In Claims Made And Reported Policies, Client Advisory (March 9, 2015) (discussing decision by the Supreme Court of Wisconsin holding that Wisconsin's notice-prejudice statutes do not supersede an LPL policy's requirement that claims be reported during the policy period)

 

Illinois Supreme Court Holds Innocent Insured Doctrine Not Applicable to Rescission, Client Advisory (February 23, 2015) (discussing decision holding that the common law innocent insured doctrine did not preserve coverage for an innocent insured where the insurer rescinded an LPL policy based on misrepresentations by another insured in the renewal application)

 

Colorado Supreme Court Holds Notice-Prejudice Rule Not Applicable to Claims-Made D&O Policies with Date-Certain Notice Requirement, Client Advisory (February 19, 2015) (discussing decision holding that the notice-prejudice rule does not apply to a date-certain notice requirement in a claims-made insurance policy)

 

New York Federal Court Rules in Favor of D&O Insurer on Issue of Interrelatedness of Claims Arising from Alleged Fraudulent Business Opportunity Scheme, Client Advisory (November 3, 2014) (discussing decision holding that a criminal action was a claim deemed "first made" prior to the inception of the policy period because it was interrelated with a prior demand letter from a state regulatory agency, which the court found qualified as a "claim" under the policy)

 

Georgia Supreme Court to Decide Important Securities Claim Coverage Issue, Client Advisory (October 22, 2014) (discussing certification from 11th Circuit Court of Appeals seeking guidance from the Supreme Court of Georgia on (1) whether an insured was "legally obligated" to pay a securities claim and (2) whether an insured's failure to obtain its insurer's consent in advance of a settlement agreement barred the insured from seeking payment under the policy even if the insurer unreasonably withheld its consent to the settlement agreement)

 

Demands For Payment Pursuant To Contracts Not Covered Under D&O Policy:  Court Finds No Wrongful Act By Entity And That Contractual Liability Exclusion Applies, Client Advisory (July 21, 2014) (holding that a D&O policy did not provide coverage for demands for payment by banks pursuant to contracts because the demands did not allege Wrongful Acts by the insured entity and because a contractual liability exclusion barred coverage)

 

Court Holds FDIC Claim Implicates Two D&O Policy Years, Client Advisory (July 11, 2014) (discussing decision holding that an FDIC claim against a bank's directors and officers triggered coverage under both 2006-2007 D&O policies and 2009-2010 D&O policies)

 

In $100M Settlement, Return of Overdraft Fees not Covered but Award of Attorneys' Fees and Costs Covered, Client Advisory (July 3, 2014) (discussing decision holding that portion of a $100 million settlement that constituted the return of overdraft fees did not constitute covered Damages while portion of the settlement that constituted an award of attorneys' fees fell within the definition of Damages and therefore was covered)

 

Northern District of Georgia Finds that Amount Paid by Bank to Settle Overdraft Fee Class Action is Uninsurable Restitution, Client Advisory (August 8, 2013) (discussing decision holding that amounts paid by a bank to settle a class action alleging that the bank charged illegal overdraft fees constituted restitution and was uninsurable as a matter of law under a professional liability policy)
 

Sixth Circuit Court of Appeals Finds that FTC Subpoena is not a Claim under a D&O Policy, Client Advisory (May 6, 2013) (discussing decision holding that subpoenas and civil investigative demands issued by the Federal Trade Commission pursuant to a written resolution do not constitute a Claim as defined in a D&O policy)

 

Northern District of Georgia Finds No Coverage under D&O Policy Due to Inadequate Notice of Circumstances, Client Advisory (April 5, 2013) (discussing decision finding no coverage under a D&O policy for a lawsuit the FDIC, as receiver for a failed bank, intends to bring against former directors and officers of the bank because the insurer failed to satisfy the "notice of circumstances" provision)

 

Central District of California Rules that Claims Arising from Insured's Mortgage Securitization Business were Not Covered under D&O Policies, Client Advisory (March 5, 2013) (discussing decision finding that there was no coverage under D&O policies for claims arising out of an insured mortgage banker/broker's mortgage securitization business because claims were not "securities claims" and were otherwise excluded from by the "errors & omissions" exclusion)

 

Southern District of Illinois Finds that Restitution is not Damages under E&O Coverage, Client Advisory (February 26, 2013) (discussing decision holding that that restitution of monies wrongfully taken does not constitute "damages" under the public officials E&O coverage of a multi-line policy)

 

Eastern District of Wisconsin Finds Contractual Liability Exclusion Partially Precludes Coverage under D&O Policy for Misrepresentation-Based Claims, Client Advisory (February 19, 2013) (discussing decision holding that contractual liability exclusion barred coverage for portions of various tort and contract claims alleging misrepresentations by the insured in connection with a franchise dispute)

 

District of Massachusetts Rejects Insured's Attempts to Narrow Scope of D&O Liability Policy's "Known Circumstances" Exclusion, Client Advisory (February 11, 2013) (discussing decision holding that, under Massachusetts law, a "known circumstances" exclusion in a not-for-profit D&O policy precluded coverage for a lawsuit and rejecting arguments that the breadth of the exclusion rendered coverage under the policy illusory and that the exclusion should be interpreted as if it were a "known loss" exclusion)

 

Whether Underlying Plaintiff was Duly Elected or Appointed Director Bars Application of Insured v. Insured Exclusion at Summary Judgment, Client Advisory (December 7, 2012) (discussing decision holding that, under New York law, an insured v. insured exclusion in a D&O policy did not bar coverage for a claim brought by a plaintiff that the insured entity defendant repeatedly described as a board member)

 

Two Courts Add to Growing Body of Cases Holding that Excess Policy Not Triggered by Insured's Below-Limits Settlement with Underlying Insurer, Client Advisory (September 19, 2012) (discussing decisions from the Sixth Circuit (applying Ohio law) and New York Supreme Court (applying New York law) holding that coverage did not attach under an excess D&O policy where an insured's below-limits settlements with an underlying insurer precluded the insured from satisfying the excess policy's "exhaustion" requirement)

 

Insured vs. Insured Exclusion Partially Bars Coverage Where Some But Not all Plaintiffs are Insureds, Client Advisory (July 12, 2012) (discussing Seventh Circuit decision holding that where a lawsuit is brought by both insured and non-insured plaintiffs, a D&O policy's insured vs. insured exclusion precludes coverage only for that portion of the claim attributable to the insured plaintiffs, as determined by the policy's allocation provision)

 

Dismissal of Prior Case on Demand Futility Grounds Does Not Mandate Dismissal of Parallel Shareholder Derivative Action, Client Advisory (June 29, 2012) (discussing decision by the Delaware Court of Chancery holding that a California federal court's prior dismissal of a shareholder derivative action for failure to adequately plead demand futility did not have a preclusive effect on the issue of demand futility in a parallel shareholder derivative action under the doctrine of collateral estoppel)

 

Court Finds "In Fact" Exclusions Triggered by Guilty Verdict in Criminal Trial, Irrespective of Insured's Appeal, Client Advisory (April 3, 2012) (discussing decision finding a guilty verdict in a criminal prosecution triggered "in fact" conduct exclusions despite pending appeal and that insurer's advancement obligation under the policy did not require it to pay defense costs incurred prior to the verdict)

 

Third Circuit Upholds Strict Application of Claims-Made Policy's Reporting Requirements, Client Advisory (March 20, 2012) (discussing decision by the Third Circuit rejecting the argument that disclosure of a claim in a renewal application is adequate notice of such claim)

 

Sixth Circuit Finds ERISA Fiduciaries Not Entitled to "Moench Presumption" at Motion to Dismiss Stage, Client Advisory (March 9, 2012) (discussing decision by the Sixth Circuit holding that the Moench presumption does not apply at the motion to dismiss stage)

 

New York Court of Appeals Holds No Coverage for ERISA Claim Against Insured Corporation Acting in Settlor Capacity, Client Advisory (February 24, 2012) (discussing decision by New York Court of Appeals holding that company acted as a settlor, not a fiduciary, and therefore was not entitled to coverage under a fiduciary liability policy)

 

Highlights of a Record-Setting Year: Securities Litigation Activity in 2011 and its Impact on the D&O Insurance Landscape, Client Advisory (February 3, 2012) (providing a summary of the highlights with respect to securities litigation activity in 2011 and its impact on the D&O insurance market as reported in the Advisen Securities Litigation Year-End Review Webinar)

 

Court Finds Benefits Due Exclusion Precludes Coverage under Fiduciary Liability Policy, Client Advisory (February 2, 2012) (discussing decision holding that the benefits due exclusion precluded coverage under a fiduciary liability policy where an employer is forced to pay its employee's medical bills due to the failure of its third party administrator to properly administer an employee benefit plan)

 

U.S. District Court Addresses Coverage for Multiplied Portion of Award of Fees to Plaintiffs' Attorneys in "Bump-Up" Class Action, Client Advisory (January 24, 2012) (discussing decision denying a D&O insurer's motion for summary judgment on its action for a declaration of its obligations to pay plaintiffs' attorneys' fees in a "bump-up" shareholder class action, where the insurer argued that it was responsible for paying only the lodestar amount and not the additional amount awarded as a result of enhancement multiplier)

 

Southern District of California Finds Ambiguity in D&O Liability Policy’s E&O Exclusion Endorsement, Client Advisory (January 19, 2012) (discussing decision by the United States District Court for the Southern District of California holding that an endorsement to a D&O policy excluding E&O claims was ambiguous since it was unclear as to whether the term “services,” as used in the endorsement, was meant to include the “wrongful acts” specifically identified in policy’s coverage section)

 

Court Finds FTC Investigation Constitutes a Claim under D&O Policy, Client Advisory (January 9, 2012) (discussing decision by United States District Court for the Northern District of Ohio holding that a formal investigation by the Federal Trade Commission constitutes a covered claim under a D&O policy)

 

Stipulated Judgment Against Insured, With A Covenant Not To Execute, Is Not A Covered Loss Under D&O Policy, Client Advisory (January 3, 2012) (discussing decision by the U.S. Court of Appeals for the Eighth Circuit holding that there was no coverage for a stipulated judgment against an insured because the insured was "absolved from payment" within the meaning of a D&O policy)

 

Southern District of California Finds Insurer Entitled to Rescission Based on Insured's Concealment of Material Adverse Information, Client Advisory (December 31, 2011) (discussing decision holding that under California law, an insurer was entitled to rescind two errors & omissions liability policies because the insured concealed material information in connection with the procurement of the policies)

 

New York Appellate Court Finds that Disgorgement Payment to SEC under Settlement Agreement was not an Insurable Loss, Client Advisory (December 14, 2011) (discussing decision holding that under New York law, a disgorgement payment to the SEC in settlement of charges that a mutual fund broker willfully facilitated illegal mutual fund trading practices did not constitute an insurable loss under a professional liability policy)

 

Eastern District of California Finds that Insurer Properly Allocated Defense Costs and Set Reasonable Rates for Independent Counsel Selected by Insureds, Client Advisory (November 22, 2011) (discussing a decision addressing an insurer's right under a duty to defend policy to set reasonable rates for independent defense counsel and to allocate defense costs where defense counsel represents both insureds and a non-insured)

 

Fee Award Not Warranted Under ERISA for "Trivial" Non-Monetary Settlement, Client Advisory (November 10, 2011) (discussing decision declining to award attorneys' fees to plaintiffs under ERISA where the substantive terms of the non-monetary settlement represented a "trivial victory" and "procedural devices" with "no real substantive success")

 

SEC Issues Guidance with respect to Disclosure of Cyber Risks, Incidents, and Insurance, Client Advisory (October 28, 2011) (discussing SEC guidance identifying factors that public companies should consider in determining whether cyber disclosure is required and identifying appropriate disclosures, including a description of relevant insurance coverage)

 

Eleventh Circuit Finds No Coverage under D&O Policy for Informal SEC Investigation, Client Advisory (October 18, 2011) (discussing decision holding that under Florida law, coverage was not available under a D&O policy for more than $20 million in legal fees incurred by Office Depot, Inc. in responding to an informal investigation by the SEC)

 

Settlement Within Primary's Limit Does Not Trigger Excess Limit Even Though Loss May Exceed Both Limits, Client Advisory (October 7, 2011) (discussing decision under Ohio law holding a settlement between an insured and its primary D&O insurer for an amount within the primary's limit does not trigger coverage under the first excess policy even though the insured's loss may exceed the limits of both the primary and excess policies)

 

Fraud Exclusion Does Not Require Exhaustion of Appellate Review and May Be Imputed to Entity via Agency Law; Issue of Waiver Precludes Summary Judgment on Rescission despite Misrepresentations, Client Advisory (October 4, 2011) (discussing decision applying Ohio law holding that despite material misrepresentations in an application, a D&O insurer's rescission claim could not be adjudicated on summary judgment given the factual issue of whether the insurer waived the remedy of rescission when it provided tail coverage and holding that the final adjudication language in a fraud exclusion did not require exhaustion of appellate review)

 

California Court of Appeal Rules in Favor of Insurer on the Issue of Interrelatedness, Client Advisory (September 23, 2011) (discussing decision holding that claims were related even though the amended claim named additional defendants, alleged significant new details, and asserted four additional causes of action)

 

S.D.N.Y. Rejects Purported Derivative Claims as "Artifice" to Implicate Coverage, Client Advisory (September 15, 2011) (discussing decision holding that purported derivative claims was "as an artifice to implicate the coverage" of a D&O policy)

 

Southern District of California Finds Coverage under D&O Policy for Legal Fees Paid on Behalf of Non-Party Employees Subpoenaed in Securities Fraud Lawsuit, Client Advisory (September 1, 2011) (discussing decision finding an entity insured's employees constituted "Directors and Officers" under the policy at issue and that Insuring Clause B provided coverage of the employees' legal fees)

 

Delaware Bankruptcy Court Addresses Issues of Related Claims, Insured versus Insured Exclusion and Allocation, Client Advisory (August 12, 2011) (discussing decision finding coverage pursuant to an allocation provision)

 

Sexual Molestation Claims Covered Under D&O Policy, Client Advisory (June 13, 2011) (discussing decision by U.S.D.C for S.D.W. Va. holding that allegations concerning sexual molestation by a nursing assistant were covered under a hospital's D&O policy)

 

Disclosure of Claim in Application Does Not Constitute Notice Under the Policy, Client Advisory (June 10, 2011) (discussing decision applying New Jersey that an Insured had not satisfied a policy's notice requirement by disclosing an action in the renewal application)

 

Prior Knowledge Provision Bars Coverage for Claim, Client Advisory (March 29, 2011) (discussing Fourth Circuit Court of Appeals decision holding that a prior knowledge provision was a condition precedent and not an exclusion subject to an innocent insureds carve-back)

 

Use of Offer of Judgment Provisions in Coverage Litigation, Client Advisory (March 2, 2011) (discussing Florida decision concerning use of offer of judgment by D&O insurer in defense of a coverage litigation)

 

New York Court Finds Coverage For Derivative Plaintiffs’ Attorneys’ Fees, Client Advisory (March 1, 2011) (discussing New York decision finding coverage for plaintiffs’ attorneys’ fees in derivative action) 

 

Late Notice Precludes Coverage Under Fidelity Bond, Client Advisory (December 6, 2010) (discussing decision holding insured discovered loss during bond period but failed to report such loss within time required by bond)

 

Shareholder Plaintiffs Receive Favorable Ruling on Statute of Limitations in Supreme Court’s Merck Decision, Professional Liability Underwriting Society Journal, Volume XXIII, Number 9 (2010)

 

Aiding and Abetting Claims:  Time for Secondary Actors to Pay?, Professional Liability Underwriting Society Journal, Volume XXII, Number 5 (2010)

 

Federal Court Finds No Coverage for Internal Investigation Costs and Certain SEC Costs, Client Advisory (October 29, 2010) (discussing decision holding that D&O insurer had no coverage obligation with respect to (1) pre-subpoena or pre-Wells Notice costs incurred in connection with an investigation by the SEC and (2) costs incurred in connection with an internal investigation)

 

9th Circuit Adopts Moench While DOL Argues Against Presumption: Will the Supreme Court Ultimately Decide?, Client Advisory (October 26, 2010) (discussing 9th Circuits adoption of the Moench presumption of prudence and the Department of Labor’s opposition to the presumption as set forth in its amicus brief filed in a 2nd Circuit case)

 

Court Holds Insolvency Exclusion Bars Coverage of Madoff-Related Claims, Client Advisory (April 28, 2010) (discussing decision holding that an insolvency exclusion precludes coverage under a professional liability insuring agreement for claims against a bank by investors in Madoff funds where the bank, pursuant to a custodian agreement with the investors, gave Madoff “full discretionary authority” to invest their funds)

 

Supreme Court to Address Inquiry Notice Standard for Securities Fraud Claims,Professional Liability Underwriting Society Journal, Volume XXII, Number 9 (2009).

 

Sen. Specter Seeks To Overturn Central Bank and Stoneridge and Allow Claims for Aiding and Abetting, Kaufman Borgeest & Ryan LLP Client Advisory (August 24, 2009)

 

Ninth Circuit Holds Debtor In Possession is an Insured for Purposes of I v. I Exclusion, Kaufman Borgeest & Ryan LLP Client Advisory (August 21, 2009)

 

Subprime/Credit Crisis-Related Claims and Potential D&O Coverage Issues, website for the Insurance Coverage Litigation Committee of the American Bar Association (Spring 2009)

 

Advisen Releases Securities Litigation Report, Kaufman Borgeest & Ryan LLP Client Advisory (March 13, 2009)

 

Cornerstone and Riskmetrics Release Reports on Class Action Settlements, Kaufman Borgeest & Ryan LLP Client Advisory(March 12, 2009)

 

Madoff Claims and Potential Coverage Issues, Kaufman Borgeest & Ryan LLP Client Advisory (January 22, 2009)

 

U.S. Supreme Court Allows Individual Suits for Monetary Damages in Defined Contribution Plans, Professional Liability Underwriting Society Journal, Volume XXI, Number 6 (2008)

 

District Court:  Grand Jury Subpoena Does Not Constitute a Claim Under D&O Policy, Client Advisory, Summer 2008 (discussing Diamond Glass coverage litigation decision holding that a grand jury subpoena does not constitute a demand for non-monetary relief or a criminal proceeding)

 

The Subprime Mortgage Crisis, newsletter of the Professionals’, Officers’ and Directors’ Liability Committee of the Tort, Trial, and Insurance Practice Section of the American Bar Association (Spring 2008)

 

Subprime Meltdown Evolves into Credit Crisis, Client Advisory, Spring 2008 (discussing the spread of the crisis beyond subprime, with a focus on auction rate securities and credit default swaps)

 

Court Upholds Company’s Termination of Former Director’s Advancement Rights, Client Advisory, Spring 2008 (discussing decision by the Delaware Court of Chancery holding that a director’s advancement rights vest when a claim is filed against the director)

 

Seventh Circuit Addresses Multitude of Coverage Issues in Context of ERISA Class Action, Client Advisory, May 2, 2008 (discussing 7th Circuit decision, which ruled on a number of important coverage issues, including: settlement and consent; the benefits due exclusion; undue delay by a carrier and waiver of coverage defenses; and the appropriate scope of evaluation of a complaint in connection with a determination of whether it triggers coverage)

 

Failure to Seek Consent for Settlement Supports Denial of Coverage, Client Advisory, March 17, 2008 (discussing a decision by the New York Court of Appeals holding that an insured may not recover settlement payments from its carriers due to its breach of a policy provision obligating it to obtain the consent of carriers before settling certain claims)

 

US Supreme Court Rejects Liability for Secondary Actors, Kaufman Borgeest & Ryan LLP Client Advisory, January 15, 2008 (discussing the Supreme Court’s Stoneridge decision, which largely rejected scheme liability under Section 10(b) for secondary actors)

 

Insured’s Contribution to Settlement Fails to Trigger Excess D&O Policy Where Primary Carrier Pays Less Than Full Limits, Professional Liability Underwriting Society Journal, Volume XX, Number 10 (2007)

 

Court Declines to Dismiss Backdating and Springloading Claims, Professional Liability Underwriting Society Journal, Volume XX, Number 5 (2007)

 

Enron Court Dismisses “Scheme Liability” Claim Against Bank as Non-Actionable Aiding and Abetting, Professional Liability Underwriting Society Journal, Volume XIX, Number 9 (2006)

 

Backdated Executive Options, Client Advisory, June 30, 2006 (discussing potential coverage issues with regard to allegations of backdated stock option grants, as well as the accounting and legal issues concerning such matters)

 

U.S. Supreme Court Says No To “Holder Actions,” Professional Liability Underwriting Society Journal, Volume XIX, Number 5 (2006)

Practice Areas 

Insurance Coverage

- Directors and Officers

- ERISA and Fiduciary

- Cyber Liability

- E&O and Professional Liability

- Employment Practices

- Financial Institutions

- General and Excess

- Healthcare

- Business Interruption

- Nursing Home and Long Term Care

- Securities Broker-Dealer

Coverage Litigation and Arbitration

Commercial Litigation

 

Education 

Brooklyn Law School, J.D., 1997

College of the Holy Cross, B.A., 1993

 

Bar and Court Admissions
New York

U.S. Court of Appeals – Second Circuit

U.S. District Courts – Southern and Eastern Districts of New York

 

Other Professional Affiliations

Professional Liability Underwriting Society (PLUS)

American Bar Association