A Subpoena May Be a Claim if the Insured says It Is

Whether or not there is coverage under a D&O Policy to pay for expenses incurred responding to a governmental subpoena is a recurring question that nets an inconsistent answer from courts around the country. While the question is often fact specific, an Illinois Federal Court held that a D&O policy provided coverage for expenses incurred responding to a subpoena, and in fact, looked outside of the subpoena itself to make that finding. In Astellas US Holding, Inc. v. Starr Indem. & Liab. Co., Judge Shah of the Northern District of Illinois held that the subpoena constituted a demand for non-monetary relief, and therefore, was a claim under the policy. Although Judge Shah is not the first federal jurist to find that a governmental subpoena constitutes a claim under a D&O policy, this decision is unique because the court relied on the pleadings in the declaratory judgment action commenced by the insured to substantiate that the subpoena constituted a claim.…

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