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Beyond Subprime: Insurance Issues in the New Wave of Financial Litigation

Beyond Subprime: Insurance Issues in the New Wave of Financial Litigation. ACC America SFBA Palo Alto, California December 3, 2008. Introductions. Dennis M. Cusack dcusack@fbm.com 415-954-4475 Karen P. Kimmey kkimmey@fbm.com 415-954-4407 Tyler C. Gerking tgerking@fbm.com

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Beyond Subprime: Insurance Issues in the New Wave of Financial Litigation

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  1. Beyond Subprime: Insurance Issues in the New Wave of Financial Litigation ACC America SFBA Palo Alto, California December 3, 2008

  2. Introductions • Dennis M. Cusack dcusack@fbm.com 415-954-4475 • Karen P. Kimmey kkimmey@fbm.com 415-954-4407 • Tyler C. Gerking tgerking@fbm.com 415-954-4968

  3. Subprime-Related Litigation • Predatory Lending • Securities Claims against Lenders • Securities Claims against Holders of MBS • Derivative Actions • ERISA • Negligence Claims against Professionals • Regulatory Actions • Failed Financial Institution Litigation

  4. Policy Types • Directors & Officers Liability • Errors & Omission • Fiduciary Liability

  5. Coverage Issues • Conduct Exclusions • Rescission • Insured v. Insured Exclusion • Definition of Loss

  6. Errors & Omissions Liability Coverage • Definition of “Professional Services” • May be limited to claims by “borrowers” • Exclusions for – • repurchase, with exception • Securityholder claim, with exception • representation of value • Fraud and personal profit

  7. Fiduciary Liability Coverage • Wrongful Acts – • breach of duties under ERISA • negligent error or omission in Administration of Plan • other error, in capacity as fiduciary • Exclusions for – • fraud and personal profit • benefits due or to become due

  8. Steps To Improve Coverage Position • Provide prompt notice of claims to insurers • Consider coverage issues arising out of mergers • Consider coverage issues in bankruptcy • Consider impact of insurer insolvency • Consider availability of coverage if you are a plaintiff

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