Delaware Bankruptcy Ruling Will Give D&O Insureds Nightmares

The case, overall, begs the question: When is a claim “brought” against an insured?

If the Henrich ruling is followed by other courts, Klein concludes that it will leave policyholders exposed to fortuitous timing decisions by their adversaries—the relator and the Justice Department—taken entirely outside the policyholder’s awareness.

As such, Klein said that, at placement or renewal, policyholders should explore the possibility of endorsing their policies to specify that when an action is filed under seal, it is deemed “brought” on the date the complaint is served.

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