Paul is a Partner concentrating in insurance coverage matters, particularly in the areas of D&O, E&O, fiduciary, and cyber liability.  He represents primary and excess insurers in complex coverage matters involving shareholder class actions, derivative actions, internal investigations, SEC and DOJ investigations and enforcement actions, as well as ERISA “stock-drop,” excessive fees, and cash-balance class actions.  Prior to joining Kaufman Borgeest & Ryan LLP, Paul represented individual and institutional shareholders in class actions and derivative actions and 401(k) plan participants in ERISA class actions. 

 

Paul has managed coverage issues involving the Enron shareholder class action, ”backdated” stock options cases, claims arising out of the sub-prime mortgage meltdown/credit crisis, and claims involving large, complex bankruptcies, such as the Delphi shareholder, as well as ERISA class actions.

 

Paul also lectures on "hot topics," trends, important developments, and other issues in the areas of D&O and fiduciary liability insurance and is a Co-Chair of the D&O Subcommittee of the Insurance Coverage Litigation Committee of the ABA Section of Litigation.  Paul also is a member of the Computer & Technology E&O Subcommittee of the Insurance Coverage Litigation Committee of the ABA Section of Litigation.

 

Publications

 

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) (discusing 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)

 

9^th Circuit Adopts Moench While DOL Argues Against Presumption: Will the Supreme Court Ultimately Decide?, Client Advisory (October 26, 2010) (discussing 9^th 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 2^nd 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)