Indemnification Clauses

News & Analysis as of

Drafting an indemnity agreement that works the way the indemnitee expects it to work

Countless indemnity agreements run along these lines: A hereby promises to defend, indemnify, and hold B harmless against all claims [etc.] caused by A’s negligence [etc.]...more

When Less Is More: The pitfalls of saying too much in professional contracts

Design and other professionals often incorporate their practices in an effort to avoid individual liability. They also add well-crafted limitations of liability and indemnification clauses in their form services contracts to...more

Sixth Circuit Clarifies Prior Reversal Of An Order That Had Vacated Arbitration Award As A Manifest Disregard Of The Law

After an arbitrator ruled that indemnification agreements between an acquiring company and certain former directors and trustees of employee stock ownership plans, were void under ERISA, the district court vacated the...more

Securities and Corporate Governance Litigation Quarterly

Welcome to the fifth issue of Securities and Corporate Governance Litigation Quarterly, Seyfarth’s quarterly publication of the Securities & Financial Litigation Group focusing on decisions or other items of interest for...more

No Review of PTAB Determination to Not Institute an IPR, Again - Achates Reference Publishing, Inc. v. Apple, Inc.

Addressing a decision by the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board) to not institute inter partes review IPR proceedings, the U.S. Court of Appeals for the Federal Circuit concluded...more

Policyholder Insider Quarterly

Some Words Are More Equal Than Others: BancInsure vs. FDIC - In George Orwell's "Animal Farm", the governing principle that "all animals are equal" was revised by the pigs, who had ascended into power, to "all animals...more

The Delaware Court Of Chancery’s Not So Exclusive Jurisdiction

Section 145(k) of the Delaware General Corporation Law is quite clear and emphatic about which court may hear actions for indemnification or advancement of expenses: The Court of Chancery is hereby vested with exclusive...more

Delaware Court Leaves Ousted Executive on His Own for Legal Fees

In a September 11, 2015, decision, the Delaware Chancery Court denied a former officer and director advance reimbursement of legal fees in a dispute with his company, despite his insistence that multiple corporate documents...more

Third Circuit Holds No Coverage For Suits Alleging Improper Collection of Customer Data

In its recent decision in OneBeacon Am. Ins. Co. v. Urban Outfitters, 2015 U.S. App. LEXIS 16399 (3d Cir. Sept. 15, 2015), the United States Court of Appeals for the Third Circuit, applying Pennsylvania law, had occasion to...more

Alert: Massachusetts High Court Clarifies Construction Manager’s Role

The Massachusetts Supreme Judicial Court issued a very significant ruling yesterday regarding the use of the CM-At Risk delivery method, particularly on public jobs. In Coghlin Electrical Contractors, Inc. v. Gilbane...more

11th Circuit Finds a Covered “Occurrence” Under CGL Policy For Damages Resulting From Contractor’s Faulty Work and Rejects...

In Pennsylvania National Mutual Insurance Company v. St. Catherine of Siena Parish, 790 F.3d 1173 (11th Cir. 2015), a judgment was obtained by the Parish (a Catholic Church) against Kiker Corporation (“Kiker”), which was...more

Representation and Warranty Insurance: No Longer Optional - Deal Terms and Trends - Summer 2015

Representation and warranty insurance (R&WI) has become an integral component of the M&A landscape and is here to stay. The data speaks for itself: in 2014, more than 700 U.S. R&WI policies were issued, which was double the...more

Construction Case Law Update - July 2015 #2

CGL Policies; Declaratory Judgments; Appeal of a Partial Final Judgment – A commercial general liability insurer and its insured sought declaratory relief over the question of insurance coverage and the duty to defend...more

Perspectives on Insurance Recovery

Welcome to the latest edition of Pillsbury’s Perspectives on Insurance Recovery. As this 2015 edition of Perspectives demonstrates, our team is working on the most challenging issues—from cyber-insurance and complex claims...more

Fee Advancement Considerations Arise From Recent Delaware and Third Circuit Decisions

Recent decisions by the US Court of Appeals for the Third Circuit and the Delaware Court of Chancery have raised important issues regarding fee advancement bylaws or policies of Delaware corporations. Please see full...more

The SEC’s Unconvincing Case Against Indemnification

The Securities and Exchange Commission’s proposed rules take a hard line against issuers indemnifying executives against clawbacks: We believe that indemnification arrangements may not be used to avoid or nullify the recovery...more

Construction Case Law Update - July 2015

Involuntary Dismissal of Counterclaims – In a suit between a developer and general contractor, the trial court erred in dismissing the general contractor’s counterclaims, without a motion by the developer, before the...more

Massachusetts Appeals Court Adopts Two-Prong Continuity and Profit Motive Test to Determine Whether Business Pursuits Exclusion...

The Massachusetts Appeals Court has provided some much needed guidance on the “business pursuits exclusion” in a recent coverage dispute between a homeowners’ insurer and a commercial liability insurer. In Preferred Mutual...more

Equities Favor Subrogating Insurer Over Subcontractor That Performed Defective Work

In Valley Crest Landscape v. Mission Pools (No. G049060, filed 6/26/15, ord. pub. 7/2/15), a California appeals court held that equities favor an insurer seeking equitable subrogation over a subcontractor that agreed to...more

Contractual Provisions Can Aid in the Recovery of Attorney’s Fees, But Consider the Unintended Consequences

Although the “American Rule” provides that each side pay its own attorneys’ fees, if your dispute arises from a contractual relationship, a “prevailing party” provision or indemnification clause may obligate one of the...more

SEC Proposes Clawback Rules

Yesterday, the SEC proposed the long-awaited executive compensation clawback rules under Section 954 of the Dodd Frank Act. Weighing in at over 100 pages, there is a lot to digest. This McGuireWoods client alert provides an...more

Customer Indemnity

Software publishers that try to require an indemnification clause from their customers for use of the publisher’s software are often met with resistance. Providing software generally creates a risk to the customers that buy...more

Chancery Court Expands on When Legal Fees Can Be Advanced

Advancement and indemnification rights provide directors and officers of Delaware corporations comfort when accepting positions that often lead to being named in litigation. However, once the interests of the executive and...more

Don’t Wait Until It’s Too Late: Top 10 Recommendations for Negotiating Your Cyber Insurance Policy

As more and more companies of all sizes ranging across a wide spectrum of industries have been exposed to network and data security breaches in recent years, the market for insurance products dedicated to cover cyber risks...more

To Be or Not to Be – an Insured Contract: Coverage for Breach of Warranty Claims

In Bituminous Casualty Corporation v. Plano Molding Company, 2015 IL App (2d) 140292, the Illinois Appellate Court tackled one of the most misunderstood issues in the commercial general liability policy: does an obligation to...more

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