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Federal and state courts have issued noteworthy decisions this year addressing important issues concerning corporate indemnification rights and directors and officers liability insurance policies. This column examines recent decisions addressing: (i) indemnification rights after corporate insolvency or a change of control; (ii) the circumstances under which a D&O policy requires an insurer to fund defense costs on a current basis; (iii) when an insurer may rescind a D&O policy even as to “innocent” insureds based on misrepresentations in the insurance application; and (iv) whether a demand for plaintiffs’ attorneys’ fees may constitute covered damages arising from an underlying claim for non-monetary relief. The 9th U.S. Circuit Court of Appeals’ opinion on covered damages highlights the risk to insurers of defining key policy terms in serpentine sentences that impair clear expression.

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