Most D&O insurance policies promise some measure of insurance protection against “regulatory and governmental” investigations, “administrative or regulatory proceedings” and criminal proceedings. However, many insurance companies will argue this coverage is not triggered until certain documents are prepared by the investigating entity and until they are prepared and drafted in a very specific way. For instance, does the investigation start when a subpoena is served or only when a “formal” investigative order is issued under the insurance policy? Insurance companies may argue that they are not on the hook for millions of dollars in “loss” until certain specific aspects of the investigation come to pass.
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