Know the Risk: How the Right Insurance Approach Helps GCs With Litigation
With class action lawsuit settlements topping $63 billion, GCs must help their organizations understand what their insurance policies cover.
February 14, 2023 at 11:15 AM
4 minute read
In 2022, 15 class action lawsuits resulted in settlements of $1 billion or more, with the total value of all settlements exceeding $63 billion, a report by the Duane Morris Class Action Review finds. These recent statistics show that class action litigation – from product liability and consumer fraud to data breach actions – remains a significant risk to corporations of all sizes.
Corporate legal teams might think insurance policies are the silver bullet against these class action lawsuit payouts. And while policies can help, in-house counsel must take an active role in understanding their organizations' risk profile, what insurance policies would best respond to those risks, and when to react when a claim comes in the door.
"It's paramount to understand the risks of your business, then build out the controls to minimize the risk that you're going to violate consumer protection laws. Part of that is also actively engaging with your insurance portfolio," says Lilit Asadourian, partner and co-chair of the insurance recovery practice at Barnes & Thornburg.
This is why in-house counsel must understand what insurance policies do and do not cover, and why a close working relationship among C-Suite decision-makers remains a must.
Study the Policy
So-called nuclear verdicts are becoming more common and courts are taking a more liberal approach to insurance coverage. The California Supreme Court recently ruled in Yahoo Inc.'s favor in Telephone Consumer Privacy Act (TCPA) litigation, finding insurer AIG had a duty to defend its insured in five class actions involving unsolicited text messages under a personal injury liability clause in Yahoo's commercial general liability (CGL) policy.
"What we expect is that the industry will react by scrambling to add TCPA exclusions to CGL policies to avoid further expansion," says Asadourian.
The lesson for GCs is clear: Understand what their company's class action risks are – and whether their insurance provides the correct coverage.
"In financial services, for example, you must comply with consumer protection statutes on lending, foreclosures, and repossessions," says Asadourian. "For companies that are lead generators, we see the TCPA issue over and over again. Sit down with a broker and insurance lawyer and ask whether you're getting the best coverage and what exclusions or sub-limits are problematic."
There isn't one specific insurance that responds to class actions, says Asadourian, which is why understanding risks is crucial.
Partner With C-Suite Decision Makers
Purchasing and managing insurance is typically the CFO's purview, but these priorities may not line up with the legal department.
"CFOs are often thinking, 'what's the cheapest policy we can get for the most coverage?' That doesn't always line up with the GC's priorities," says Asadourian. "GCs should lead a bi-annual check-in with those within their organizations who buy the policies."
Coverage attorneys can help by giving policies a health check, she says, noting that claim advocacy starts before a claim is in the door. Legal departments should also develop a response timeline and protocol for when claims do come in.
"Notice is black and white under most claims made policies," says Asadourian. "You could settle that one claim privately, but if you get a class action making the same allegations six months later, your carrier could say there's no coverage because you didn't give timely notice."
The point, says Asadourian, is that companies have insurance for catastrophic lawsuits for a reason but knowing what policies cover and working with C-Suite decision-makers can reduce additional risk. "You want to be protected," she says.
Barnes & Thornburg's Insurance Recovery and Counseling practice has additional information for in-house counsel about insurance and risk.
Johanna Marmon is a writer in upstate New York who has been reporting on trends impacting the legal industry for more than 15 years.
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllStatute of Limitations Shrivels $5M Jury Award to Less than $1M, 8th Circuit Rules
4 minute readOnce the LA Fires Are Extinguished, Expect the Litigation to Unfold for Years
5 minute read'Pull Back the Curtain': Ex-NFL Players Seek Discovery in Lawsuit Over League's Disability Plan
Insurer Not Required to Cover $29M Wrongful Death Judgment, Appeals Court Rules
Law Firms Mentioned
Trending Stories
- 1Greenberg Traurig Litigation Co-Chair Returning After Three Years as US Attorney
- 2DC Circuit Rejects Jan. 6 Defendants’ Claim That Pepper Spray Isn't Dangerous Weapon
- 3Quiet Retirement Meets Resounding Win: Quinn Emanuel Name Partner Kathleen Sullivan's Vimeo Victory
- 4Balancing Hybrid Work With Relationship Building, Newly Merged Ballard Spahr Prioritizes 'Coaching Aspect' of Training New Associates
- 5Texas-Based Ferguson Braswell Expands in California With 6-Lawyer Team From Orange County Law Firm
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250