XL Specialty Insurance v. Loral Space & Communications, Inc.

OPINION OF THE COURT Moskowitz, J. The question this Court needs to resolve is whether plaintiff insurers’ policy covers fees defendant insured must pay to counsel for the plaintiffs in two lawsuits. Our analysis centers primarily around whether these fees constitute (1) a “Loss” and (2) a “Securities Claim” under the policy. According to our interpretation, the motion court was correct to declare that there is coverage for the fees of plaintiffs’ counsel in the derivative lawsuit. However, the motion court was incorrect to the extent it declared that plaintiff insurers must cover fees to counsel in the class action, because that case did not involve a “Securities Claim.” Plaintiffs-appellants XL Specialty Insurance Co., Arch Insurance Company and U.S. Specialty Insurance Company (the insurers) issued a “Management Liability and Company Reimbursement” policy to defendant-respondent Loral Space & Communications, Inc. (Loral) on a claims-made basis. The parties agree that section I (C) of the policy is the applicable provision. Under this section, the insurers agreed to pay, “on behalf of the Company Loss resulting solely from any Securities Claim first made against the Company during the Policy Period . . . for a Company Wrongful Act.” The policy defines “Loss” as: “damages, judgments, settlements or other amounts (including punitive or exemplary damages where insurable by law) and Defense Expenses in excess of the Retention that the Insured is legally obligated to pay.” “Company Wrongful Act” means: “any actual or alleged act, error, omission, misstatement, misleading statement or breach of duty by the Company in connection with a Securities Claim.” — 111 — Loral paid an additional premium to amend the policy’s definition of “Securities Claim” to include shareholder derivative claims in endorsement no. 11: “ ‘Securities Claim’ means a Claim, other than an administrative or regulatory proceeding against or investigation of a Company, made against any insured: “(1) for a violation of any federal, state, local regulation, statute or rule regulating securities, including but not limited to the purchase or sale of, or offer to purchase or sell, securities which is: “(a) brought by any person or entity based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the purchase or sale of, or offer to purchase or sell, securities of the Company; or “(b) brought by a security holder of a Company with respect to such security holder’s interest in securities of such Company; or “(2) brought derivatively on behalf of the Company by a security holder of such Company.” Thus, the policy covers either a derivative claim by a shareholder or a claim made against the company “for a violation of any federal, state, local regulation, statute or rule regulating securities.” During the policy period, Loral entered into a transaction with a controlling shareholder, MHR Fund Management LLC (MHR), by which MHR agreed to provide Loral with $300 million. In exchange, Loral agreed to issue preferred stock to MHR that was convertible into common stock. Other shareholders caught wind of Loral’s transaction with MHR and ultimately shareholders filed two lawsuits in the Delaware Chancery Court. The first was a shareholder derivative action, by BlackRock Corporate High Yield Fund, Inc., that sought rescission of the transaction (the BlackRock derivative suit). The second was a class action by another shareholder, Highland Crusader Offshore Partners, L.E (the Highland class action), seeking damages. Both suits alleged that Loral’s board of directors breached its fiduciary duties in approving the transaction because the MHR financing was not entirely fair to Loral. In large part this was because: (1) the special committee of — 112 — directors established to negotiate the MHR financing was not independent from MHR; (2) the process leading to the execution of the MHR financing was otherwise unfair to Loral; and (3) the total value of the preferred stock that Loral issued to MHR was worth far more than the $300 million that Loral received in the MHR financing. Loral stood by its directors and defended against both lawsuits. The Delaware Chancery Court consolidated the two actions and tried them together. After trial, the Delaware Chancery Court, looking at the “entire fairness”1 of the transaction, held that the transaction was unfair to Loral because, inter alia, the dividend rate was too high and the conversion rate was too low (see In re Loral Space & Communications Inc., 2008 WL 4293781, 2008 Del Ch LEXIS 136 [2008]). To remedy this unfairness, the Delaware Chancery Court reformed the terms of the MHR financing. Most significantly, the Delaware Chancery Court restructured the MHR financing to provide that, in return for its $300 million investment in Loral, MHR would receive nonvoting common stock instead of convertible preferred stock. At no point did the Delaware Chancery Court order MHR, Loral or anyone else to pay any money damages to Loral or the underlying plaintiff shareholders. The Delaware Chancery Court found it unnecessary to “undertake at this time a director-by-director liability assessment” (2008 WL 4293781, *33, 2008 Del Ch LEXIS 136, *120) because MHR and Loral could work out a remedy without awarding Loral any monetary damages. Thus, the Delaware Chancery Court did not make any findings one way or the other concerning the fault of Loral’s officers and directors. Thereafter, counsel for BlackRock and counsel for Highland applied for awards of attorneys’ fees. Loral stipulated to an award of almost $8.8 million for BlackRock’s counsel in the derivative action. Using the lodestar method, the Chancery Court awarded Highland’s counsel about $10.7 million for fees and expenses, finding that, although there had not been a creation of — 113 — a common fund, the litigation had produced a substantial benefit to the company, thus warranting an award of fees under the “corporate benefit doctrine.”2 On appeal, the Delaware Supreme Court affirmed that award (Loral Space & Communications, Inc. v Highland Crusader Offshore Partners, L.P., 977 A2d 867, 870 [Del 2009]). Thereafter, Loral sought coverage for these fees from its insurers. Plaintiff insurers commenced this action seeking a declaration that they are not obligated to provide coverage to Loral for the attorneys’ fees. The insurers argue primarily that Loral has not suffered a covered loss because the Delaware Chancery Court found no liability against Loral and only ordered a remedy against MHR (i.e., a restructuring of the transaction to dilute MHR’s stocks to remove their voting rights). As the resulting restructure actually provided a benefit, albeit nonmonetary, to Loral, the insurers argue that Loral has not suffered a loss. The fees, the insurers extrapolate, simply reduce the benefit that Loral received. Giving the unambiguous provisions of the policy “their plain and ordinary meaning” (Nautilus Ins. Co. v Matthew David Events, Ltd., 69 AD3d 457, 459 [2010] [internal quotation marks and citations omitted]), the fee awards constitute a “Loss” resulting solely from a “Securities Claim” for a “Company Wrongful Act.” The policy’s definition of “Loss” is broad. It covers “other amounts” the insured becomes “legally obligated” to pay. Although the Delaware Chancery Court did not create a common fund, the shareholders’ counsel can still seek fees from the corporation under the “corporate benefit doctrine.” Thus, Loral is legally obligated to pay the amount of the fee award out of its own pocket. This situation fits squarely within the definition of “Loss” as an “other amount” Loral is “legally obligated to pay” (see Safeway Stores, Inc. v National — 114 — Union Fire Ins. Co. of Pittsburgh, Pa., 64 F3d 1282, 1287 [9th Cir 1995] [plaintiffs attorneys’ fees that were part of settlement were “actual out-of-pocket loss” under insurance policy because “(t)he lawyers got the money, not the shareholders” even though shareholders received a dividend that was not a loss under the policy]). What the insurers are in essence suggesting is that the attorneys’ fees should be offset against the value of the nonmonetary benefit Loral and its shareholders received as a result of the restructured transaction. But nothing in the policy suggests offsetting a loss by the amount of any nonmonetary benefits received. I do not agree with the dissent’s reading that “legally obligated to pay” refers to “the Retention.” Nor would I equate “other amounts” entirely with “damages.” The policy definition of “Loss” lists both “damages” and “other amounts . . . the insured is legally obligated to pay.” If both items mean “damages,” there would be no need to list “other amounts.” Nevertheless, the attorneys’ fees Loral had to pay constitute damages (see UnitedHealth Group Inc. v Hiscox Dedicated Corporate Member Ltd., 2010 WL 550991, *10-11, 2010 US Dist LEXIS 10983, *29-31 [D Minn, Feb. 9, 2010] [portion of settlement constituting plaintiffs attorneys’ fee award “falls squarely within the Policy’s definition of ‘(d)amages’ ” where policy defined “(d)amages” as “any monetary amount . . . which an Insured is legally obligated to pay”]). The argument that Loral received a benefit is illusory. As a result of the shareholder derivative suit, the Delaware court simply reformed the transaction to make it fair to Loral and its shareholders. Loral did not make a profit. There was nothing extra added as a result of the underlying action. At best, the reformation of the transaction leveled the playing field and repaired the wrong that Loral would have suffered otherwise. The Delaware court recognized this circumstance when it stated that the remedy would rectify the harm to Loral: “[T]he remedy rectifies the harm to Loral and its public stockholders from an unfair, non-market tested transaction that saddled the corporation with an unwieldy capital structure and a future in which MHR held unilateral veto power over virtually any major decision the Loral board made” (2008 WL 4293781, *32, 2008 Del Ch LEXIS 136, *119-120). Finally, the “corporate benefit doctrine” was only the vehicle by which plaintiffs’ counsel could receive compensation for the success in the derivative suit (see In re First Interstate Bancorp — 115 — Consol. Shareholder Litig., 756 A2d at 360). While Loral may have received a benefit in that it no longer had to suffer harm, it does not follow that Loral actually made a tangible profit. Reliance Group Holdings v National Union Fire Ins. Co. of Pittsburgh, Pa. (188 AD2d 47 [1993], lv dismissed in part, denied in part 82 NY2d 704 [1993]) does not help the insurers. In that case, the insured had acquired profits wrongfully. The decision merely stands for the well-established principle that there is no insurance where an insured is forced to disgorge funds that it acquired wrongfully (id. at 55; see also Vigilant Ins. Co. v Credit Suisse First Boston Corp., 10 AD3d 528, 529 [2004]). Moreover, Reliance is distinguishable on its facts. After paying to settle various lawsuits, Reliance gained access to the remainder of the money it had acquired. Here, there is no remainder. As a practical matter, at the end of the underlying suit, Loral had the same $300 million that MHR invested in exchange for stock that Loral had before the start of the case. The only difference is now the stock that Loral issued is actually worth the $300 million. In an ordinary derivative suit there is often a monetary settlement. The attorneys’ fees traditionally come out of those settlement funds. In cases where the corporate defendant has insurance, the policy often helps fund the settlement. Loral paid an extra premium to obtain coverage for derivative lawsuits. Had the Delaware court instead rendered a monetary judgment against Loral in favor of minority shareholders, the insurers would be unlikely to contest coverage. But, that did not happen. Instead, in the face of this unusual transaction,3 the Delaware Chancery Court crafted a creative, equitable remedy that retained the transaction’s general parameters, but rendered it fair to all concerned and avoided even more litigation over whether certain individual director defendants should be liable. As part of this equitable judgment, the Delaware court also rendered a money judgment against Loral for the derivative plaintiffs’ attorneys’ fees. That Loral must now pay this amount places the fees squarely in the “other amounts” portion of the definition of “Loss.” Moreover, this policy covers derivative lawsuits. After all, the policy covers a “Securities Claim” “brought derivatively on behalf of the Company by a security holder of such Company.” — 116 — As we noted, Loral apparently paid an additional premium to add derivative suits to the definition of “Securities Claim.” The award of attorneys’ fees is typical in a derivative suit where plaintiff has prevailed. To declare that Loral has no coverage for derivative plaintiffs’ attorneys’ fees would deprive Loral of the coverage for derivative lawsuits that it paid for and expected to receive. Had the insurers meant to exclude derivative plaintiffs’ attorneys’ fees, they could have limited the definition of “Loss,” limited the definition of “Securities Claim” or drafted an exclusion. Finally, the insurers argue that Loral cannot recover costs of, in effect, prosecuting a derivative action, and that Loral can only recover for these fees if the Delaware court found that Loral committed a “Company Wrongful Act.” However, the policy does not contain these limitations. Rather, the policy covers all losses “resulting solely from any Securities Claim [the definition of which includes a derivative lawsuit] first made against the Company during the Policy Period . . . for a Company Wrongful Act.” The definition for “Company Wrongful Act” includes an “alleged act” (emphasis added). Thus, the policy covers all losses resulting from a derivative action alleging a “Company Wrongful Act.” The policy says nothing that requires a court to find that the company had committed a “Company Wrongful Act” before coverage is available. The insurers’ interpretation therefore not only contradicts the plain language of the policy, but also imposes a precondition to coverage found nowhere in the policy. The dissent correctly points out that the stipulation in which Loral agreed to the fee award to BlackRock’s counsel states that Loral was paying the fee “[i]n consideration of the results achieved by the derivative plaintiffs.” However, this language does not change the reality that the fee award is an amount that Loral has become legally obligated to pay. Loral stood by its directors and officers. It never took over this lawsuit. Because it remained a nominal defendant, Loral now is legally obligated to pay the fee award. The policy covering Loral provided coverage for losses resulting solely from a “Securities Claim.” Loral paid an extra premium to expand “Securities Claim” to include derivative lawsuits. A loss from a derivative suit is precisely what happened here. Accordingly, the plain terms of the policy dictate that the insurers must cover the fee award in the BlackRock action. However, the claims in the Highland class action do not fall within coverage because they do not involve a “Securities — 117 — Claim.” These claims are not derivative claims and did not otherwise allege a violation “of any federal, state, local regulation, statute or rule regulating securities.” Rather, they allege only breach of fiduciary duty by the company’s directors. Loral’s argument that both Delaware actions were based on the “entire fairness rule,” that governs securities transactions, is without merit. The entire fairness rule is not a rule regulating securities. It is a standard to review corporate transactions where, as here, the plaintiff has rebutted the presumption of fairness arising from the business judgment rule (see Emerald Partners v Berlin, 787 A2d 85, 91 [Del 2001]; Weinberger v UOP, Inc., 457 A2d at 710). The clear language of the policy does not encompass losses arising from an action brought against the company and its directors claiming only common-law breach of fiduciary duty (see generally P.J.P. Mech. Corp. v Commerce & Indus. Ins. Co., 65 AD3d 195 [2009]). Accordingly the order of the Supreme Court, New York County (Richard B. Lowe, III, J.), entered on or about February 16, 2010, that denied plaintiffs’ motion for summary judgment on their cause of action seeking a declaration that they are not obligated to reimburse defendant for attorneys’ fee awards in an underlying Delaware class action and derivative lawsuit, and granted defendant’s cross motion for summary judgment declaring that plaintiffs are so obligated, should be modified, on the law, to grant plaintiffs’ motion to the extent of declaring that plaintiffs are not obligated to indemnify defendant for the part of the fee award that directed defendant to pay fees to Abrams & Laster LLP as counsel for the class action plaintiffs, and to deny defendant’s motion to the same extent, and otherwise affirmed, without costs. Footnotes [1] Under Delaware law, a controlling or dominating shareholder standing on both sides of a transaction bears the burden of proving its entire fairness: “The concept of fairness has two basic aspects: fair dealing and fair price . . . However, the test for fairness is not a bifurcated one as between fair dealing and price. All aspects of the issue must be examined as a whole since the question is one of entire fairness” (Weinberger v UOP, Inc., 457 A2d 701, 711 [Del 1983]). [2] The “corporate benefit doctrine” allows the Delaware court to award attorneys’ fees to plaintiffs’ counsel in successful derivative or class action suits where there has been a benefit to the corporation. If shareholder litigation results in a money judgment benefitting the corporation or an ascertainable class, plaintiffs’ counsel is ordinarily entitled to an allowance of fees paid from the “common fund” that counsel’s efforts helped to create (see Tandycrafts, Inc. v Initio Partners, 562 A2d 1162, 1166-1167 [Del 1989]). When there is no common fund, but the corporation nevertheless receives a benefit, shareholders’ counsel can still seek fees from the corporation, but will receive payment on a quantum meruit basis out of the corporation’s own assets (Tandycrafts at 1167; see also In re First Interstate Bancorp Consol. Shareholder Litig., 756 A2d 353, 361 [Del Ch Ct 1999], affd sub nom. First Interstate Bancorp v Williamson, 755 A2d 388 [Del 2000]). [3] The Delaware Chancery Court described the Loral-MHR transaction as “a large, non-market tested transaction, which is without many, if any, precedents” (2008 WL 4293781, *31, 2008 Del Ch LEXIS 136, *115).