In September of 2017, Republicans gained a majority of seats on the National Labor Relations Board. After several months spent relatively quietly, the National Labor Relations Board overturned or reversed a host of decisions and regulations in the first few weeks of December. All the reversals focused on Obama-era policies only in place for a few years.
Insurance litigation can put commercial businesses in a number of complicated binds. Often times, the interests of the policyholder and the insurance company providing their defense do not align perfectly. This part of the reason insurance companies will often provide their policyholders with independent counsel, commonly referred to as Cumis counsel. These misaligned interests can also present themselves as part of efforts to settle a case.
August 2016, the National Labor Relations Board issued its decision in the Browning-Ferris case. That decision significantly revised the National Labor Relations Board test for determining who constituted an employer in joint employment situations. The NLRB returned to an older test that looked at both direct and indirect test control over the terms of employment instead of just direct and immediate control.
Directors and Officers Liability policies traditionally targeted public corporations. These corporations began to face a large increase in the number of shareholder derivative lawsuits in the 1970s and 1980s and D&O policies existed to help companies handle the risks involved in these lawsuits. These lawsuits are often by significant drops in a company’s share price or valuation and therefore are easier to bring against public companies. This often leads to the mistaken belief that private companies do not need D&O insurance or that they need very basic minimal D&O policies. Recent cases though show the error in that line of thinking.
When people traditionally think of insurance loss payouts, they think of indemnity - claims paid out for damage suffered by property or people. Yet commercial liability policies include two separate promises from insurance companies - the duty to indemnify and the duty to defend. The duty to defend requires insurance companies to hire legal counsel and pay the associated legal fees. In theory this duty is simple enough, but in practice it has a number of complications.
