Alexion Pharmaceuticals, Inc. v. Endurance Assurance Corporation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ALEXION PHARMACEUTICALS, )
INC., )
)
Plaintiff, ) C.A. No. N22C-10-340
) PRW CCLD
v. )
)
ENDURANCE ASSURANCE )
CORPORATION f/k/a/ )
ENDURANCE REINSURANCE )
CORPORATION OF AMERICA, )
HUDSON INSURANCE COMPANY, )
NAVIGATORS INSURANCE )
COMPANY, and SWISS RE )
CORPORATE SOLUTIONS )
AMERICA INSURANCE )
CORPORATION f/k/a NORTH )
AMERICAN SPECIALTY )
INSURANCE COMPANY, )
)
Defendants. )
)
Submitted: December 7, 2023
Decided: February 15, 2024
MEMORANDUM OPINION AND ORDER
Upon Plaintiff’s Motion for Partial Summary Judgment,
GRANTED.
Upon Defendants Endurance Assurance Corporation, Navigators Insurance
Company, and Swiss Re Corporate Solutions America Insurance Corporations’s
Cross-Motions for Summary Judgment,
DENIED.
Daniel M. Silver, Esquire, Benjamin A. Smyth, Esquire, MCCARTER & ENGLISH,
LLP, Wilmington, Delaware; Robin L. Cohen, Esquire, Cynthia M. Jordano,
Esquire, David J. Matulewicz-Crowley, Esquire, COHEN ZIFFER FRENCHMAN &
MCKENNA LLP, New York, New York, Attorneys for Plaintiff Alexion
Pharmaceuticals, Inc.
Marc S. Casarino, Esquire, KENNEDYS CMK LLP, Wilmington, Delaware; Jeanette
L. Dixon, Esquire, MANNING & KASS, ELLROD, RAMIREZ, TRESTER LLP, New York,
New York, Attorneys for Defendant Endurance Assurance Corporation.
John C. Phillips, Jr., Esquire, David A. Bilson, Esquire, PHILLIPS MCLAUGHLIN &
HALL, Wilmington, Delaware; James Sandnes, Esquire, Sarah F. Voutyras, Esquire,
SKARZYNSKI MARICK & BLACK, LLP, New York, New York, Attorneys for
Defendant Swiss Re Corporate Solutions America Insurance Corporation.
Bruce W. McCullough, Esquire, BODELL BOVÉ, LLC, Wilmington, Delaware;
Ronald P. Schiller, Esquire, Thomas N. Brown, Esquire, Daniel J. Layden, Esquire,
HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER, Philadelphia, Pennsylvania,
Attorneys for Defendant Navigators Insurance Company.
R. Grant Dick IV, Esquire, COOCH AND TAYLOR, P.A., Wilmington, Delaware;
Courtney E. Scott, Esquire, Tressler LLP, New York, New York, Attorneys for
Defendant Hudson Insurance Company.
WALLACE, J.
This is an insurance coverage dispute. Plaintiff Alexion Pharmaceuticals, Inc.
has incurred losses related to a securities action filed in federal court. It has two
towers of coverage under which those losses may be covered. Defendants—the few
insurers that only participated in one of the two towers—have, unsurprisingly, each
pointed to that tower from which they are absent as the proper source of coverage.
Now, Plaintiff and three Defendants have cross-moved for summary judgment as to
whether the federal securities action is “related” to a previously reported incident.
The answer will dictate the proper placement of that claim.
The federal securities action is not related to a previous claim. Based on the
language of the policy and Delaware law, the applicable standard for relatedness is
whether the two incidents are “meaningfully linked.” Here, the link between the
securities action and the prior incident is tangential, not meaningful. Accordingly,
Plaintiff’s Motion is GRANTED and Defendants’ Motions are DENIED.
I. FACTUAL BACKGROUND
A. THE PARTIES
Plaintiff Alexion Pharmaceuticals, Inc. is a Delaware corporation.1 Alexion
developed a drug called Soliris that’s used to treat certain rare diseases.2 Alexion
has been accused of wrongdoing in its promotion of Soliris that led to corporate
1
Complaint (“Compl.”) ¶ 16 (D.I. 1).
2
Alexion’s Motion for Partial Summary Judgment (hereinafter “Alexion’s Mot.”), Ex. 13
(hereinafter “Securities Action Am. Compl.”) ¶ 7 (D.I. 17).
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losses.3
Defendant Endurance Assurance Corporation f/k/a Endurance Reinsurance
Corporation of America is a Delaware corporation.4 Endurance was the third-level
excess insurer in Alexion’s tower of insurance from 2015 to 2017.5
Defendant Navigators Insurance Company is a New York corporation.6
Navigators was the ninth-level excess insurer in Alexion’s 2015 to 2017 insurance
program.7
Defendant Swiss Re Corporate Solutions America Insurance Company f/k/a
North American Specialty Insurance Company is a Missouri corporation.8 Swiss
Re was the second-level excess insurer in Alexion’s 2015 to 2017 insurance
program.9
Defendant Hudson Insurance Company is a Delaware corporation.10 Hudson
was the third-level excess insurer in Alexion’s tower of insurance from 2014 to
2015.11
3
See, e.g., Securities Action Am. Compl.
4
Compl. ¶ 17.
5
Alexion’s Mot., Ex. 1 (hereinafter “Alexion’s D&O Insurance Coverage”).
6
Compl. ¶ 19.
7
See Alexion’s D&O Insurance Coverage.
8
Compl. ¶ 20.
9
See Alexion’s D&O Insurance Coverage.
10
Compl. ¶ 18.
11
See Alexion’s D&O Insurance Coverage.
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B. ALEXION’S PROMOTION OF SOLIRIS AND RELATED LOSSES
1. SOLIRIS’S MARKETING
Alexion’s product, Soliris, is not a typical medicine. It belongs to a family of
so-called “orphan drugs.”12 Orphan drugs are marked by their rarity, as they treat
the world’s least common diseases.13 Soliris, for example, treats paroxysmal
nocturnal hemoglobinuria and atypical hemolytic uremic syndrome.14 In 2017,
Soliris only had about 11,000 customers.15 For those users, Soliris could be “a
miracle drug.”16 But miracles don’t come cheap. Soliris’s annual cost per patient
reportedly ranged between $500,000 and $700,000.17
With such high per-customer revenue, customers were naturally in high
demand.18 To find and bind its uncommon customers, Alexion allegedly relied upon
extreme sales tactics.19 Those alleged efforts include, for example, improperly
obtaining patient data to locate potential customers, telling potential customers
12
Navigators and Swiss Re’s Brief Opposing Alexion’s Motion for Partial Summary Judgment
(hereinafter “Navigators and Swiss Re’s Opp’n Br.”), Ex. B (hereinafter “Bloomberg Article”) at
2 (D.I. 58).
13
Bloomberg Article at 2.
14
Id. at 6.
15
Id. at 3.
16
Id. at 7.
17
Id. at 2.
18
Id. at 7.
19
Securities Action Am. Compl. ¶ 3.
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“you’re going to die” to encourage them to demand Soliris from their doctor,
pressuring doctors to provide Soliris even when the doctor didn’t believe it was an
appropriate treatment, and funneling money through charitable organizations to help
patients obtain subsidized Soliris prescriptions.20 Relevant here, Soliris also
allegedly funded foreign patient advocacy groups’ efforts to obtain government
funding for Soliris prescriptions.21
2. THE SEC SUBPOENA AND SETTLEMENT
Alexion’s legal problems first arrived on May 7, 2015, in the form of a
subpoena from the Securities and Exchange Commission (the “SEC Subpoena”).22
The SEC Subpoena was broad in scope, but primarily sought documents related to
Alexion’s foreign and domestic grantmaking activities, with an emphasis on
Alexion’s compliance with the Foreign Corrupt Practices Act (the “FCPA”).23 The
SEC Subpoena also requested any documents related to recalls of Soliris.24
An earlier SEC document—which ordered the investigation into Alexion—
was dated March 9, 2015, and outlined the SEC’s early theories (the “March 9
20
Id. ¶¶ 15, 16, 18, 19.
21
Id. ¶ 157.
22
See Alexion’s Mot., Ex. 11 (hereinafter “SEC Subpoena”).
23
SEC Subpoena at ALXN000011 to ALXN000016.
24
Id. at ALXN000012 to ALXN000013.
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Order”).25 That preliminary document raised the possibility of Alexion including
inaccurate information on its annual and quarterly reports, failing to keep adequate
books and records, and “failing to implement a system of internal accounting
controls.”26 Like the subpoena it spurred, the most specific allegations in the March
9 Order relate to Alexion’s “payment of bribes to foreign officials . . . and the level
of recall required for Alexion’s drug, Soliris, the impacts on Alexion’s revenue
streams, and the risk to investors.”27
In July 2020, Alexion settled with the SEC.28 In its summary of findings, the
SEC said, “[t]hese proceedings arise out of Alexion’s violations of the internal
accounting controls and recordkeeping provisions of the Foreign Corrupt Practices
Act of 1977.”29 The SEC found that from 2011 to 2015, Alexion’s subsidiaries in
Turkey and Russia made improper payments to government officials to obtain
beneficial treatment of Soliris.30 The SEC further found that those Alexion
subsidiaries kept false records in connection with those payments and that Alexion’s
internal accounting controls weren’t sufficient to catch its subsidiaries’
25
Alexion’s Supplemental Brief in Support of its Motion for Summary Judgment (hereinafter
“Alexion’s Supp. Br.”), Ex. 30 (D.I. 122).
26
Alexion’s Supp. Br., Ex. 30 at Alexion_001731 to Alexion_001733.
27
Id. at Alexion_001731.
28
See Navigators and Swiss Re’s Opp’n Br., Ex. H (“hereinafter “SEC Settlement”).
29
SEC Settlement at 2.
30
Id.
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wrongdoing.31 Similarly, the SEC found that Alexion’s deficient internal accounting
controls led to Alexion’s subsidiaries in Brazil and Colombia failing “to maintain
accurate books and records regarding third-party payments.”32 Alexion agreed to
remedy its noncompliance and pay over $21 million in penalties.33
3. THE DISTRICT OF CONNECTICUT SECURITIES ACTION
Alexion’s legal troubles deepened on December 29, 2016, when a class of
Alexion stockholders commenced a federal securities lawsuit in the District of
Connecticut (the “Securities Action”). On June 2, 2019, the plaintiffs in the
Securities Action filed an Amended Consolidated Class Action Complaint (the
“Securities Action Amended Complaint”) against Alexion and its officers and
directors for violation of federal securities laws.34
The Securities Action Amended Complaint’s allegations have three general
themes: (1) Alexion and its officers and directors misled investors about the source
of Alexion’s financial success; (2) Alexion’s sales practices violated applicable
industry ethical standards and federal law; and (3) the “truth” about Alexion’s illegal
and unethical sales practices was slowly revealed through a series of “partial
31
Id.
32
Id. As relevant here, the SEC found that “[f]rom 2013 to 2015, certain employees at Alexion
Brazil and Alexion Colombia created or directed third parties to create inaccurate financial records
concerning payments to third parties, including patient advocacy organizations.” Id. at 6.
33
Id. at 8.
34
See Securities Action Am. Compl.
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disclosures.”35 The plaintiffs asserted causes of action under Sections 10(b) and
20(a) of the Securities and Exchange Act of 1934 (the “Exchange Act”), and SEC
Rule 10b-5.36 In sum, the Securities Action plaintiffs complain that they overpaid
for stock that was propped up by illegal activity.
Relevant here, the Securities Action plaintiffs used Alexion’s activities in
Brazil as one example of Alexion’s undisclosed wrongdoing. 37 Specifically,
Alexion allegedly used its relationship with a patient advocacy group called
Associacao dos Familiares, Amigos e Portadores de Doenҫas Graves (“AFAG”) to
manipulate Brazil’s pharmaceutical reimbursement policies.38 That alleged scheme
takes advantage of Brazil’s constitutional guarantee of healthcare for its citizens.39
Pharmaceutical companies are supposed to register their products with the Brazilian
government, so that the government can negotiate on price.40 But citizens can get
reimbursed for unregistered medications by suing the government.41 Alexion chose
not to register Soliris and, instead, used AFAG to fund citizens’ suits demanding
35
Id. ¶¶ 7-25.
36
Id. ¶¶ 365-78.
37
Id. ¶¶ 155-62.
38
Id. ¶ 155.
39
Id. ¶ 156.
40
Id.
41
Id.
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reimbursement of Soliris at full price.42 In doing so, Alexion both circumvented
Brazil’s price negotiation requirement and allegedly pushed through fraudulent
claims.43 Through that ploy, Alexion reportedly plundered about $400 million from
the Brazilian government.44
C. ALEXION’S INSURANCE PROGRAMS
Seeking coverage for the Securities Action, Alexion turned to two potential
towers of Directors’ and Officers’ Liability (“D&O”) insurance: the “2014-2015
Program” and the “2015-2017 Program.”45 These two towers are largely the same,
narrowing the parties to this dispute. But, for Endurance, Swiss Re, Navigators
(together, the “2015-2017 Insurers”), and Hudson, their liability depends on the
placement of the Securities Action. The answer to that placement question, in turn,
hinges on whether the Securities Action is related to the SEC Subpoena.
1. THE 2014-2015 PROGRAM
Alexion purchased a claims-made D&O insurance program for the period of
June 27, 2014, to June 27, 2015 (the “2014-2015 Program”).46 The primary policy
was issued by non-party ACE American Insurance Company (“Chubb”) and covered
42
Id. ¶¶ 157-59.
43
Id. ¶ 160.
44
Id. ¶ 161.
45
See Alexion’s D&O Insurance Coverage.
46
See id.
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Alexion as well as Alexion’s Officers and Directors (the “2014-2015 Policy”).47 The
2014-2015 Program included a series of excess policies that followed form to the
2014-2015 Policy.48 The only insurer from the 2014-2015 Program that is presently
a party here is Hudson; Hudson was the 2014-2015 third-level excess insurer.49 The
details of the 2014-2015 Policy aren’t of much importance in resolving these cross-
motions.
2. THE 2015-2017 PROGRAM
Alexion purchased a similar insurance program for the period of June 27,
2015, to June 27, 2017 (the “2015-2017 Program”).50 Like the 2014-2015 Program,
Chubb issued the primary policy (the “2015-2017 Policy”),51 and the excess policies
followed form. The line of excess insurers is nearly identical to the 2014-2015
Program. But, in this later period, Swiss Re, Endurance, and Navigators were the
second-level, third-level, and ninth-level excess insurers, respectively.52 Several
provisions of the 2015-2017 Policy, which are incorporated into the excess policies,
form the basis of these 2015-2017 Insurers’ denials of coverage.
47
See Alexion’s Mot., Ex. 8 (hereinafter “2014-2015 Policy”).
48
See Alexion’s D&O Insurance Coverage.
49
Id. Old Republic Insurance Company was named a defendant in this action but has since
settled with Alexion. See Order of Dismissal with Prejudice as to Claims Against Old Republic
Insurance Company (D.I. 118).
50
See Alexion’s D&O Insurance Coverage.
51
See Alexion’s Mot., Ex. 3 (hereinafter “2015-2017 Policy”).
52
Alexion’s D&O Insurance Coverage.
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First, Section VII of the 2015-2017 Policy states in relevant part that:
All Claims arising out of the same Wrongful Act and all
Interrelated Wrongful Acts of the Insureds shall be
deemed to be one Claim, and such Claim shall be deemed
to be first made on the date the earliest of such Claims is
first made, regardless of whether such date is before or
during the Policy Period. All Loss resulting from a single
Claim shall be deemed a single Loss.53
Under the 2015-2017 Program, “Wrongful Act” means:
[A]ny error, misstatement, misleading statement, act,
omission, neglect, or breach of duty, . . . actually or
allegedly committed or attempted by: 1. . . . any Insured
Person in his or her status as such, or any matter claimed
against any Insured Person solely by reason of his or her
serving in such capacity; 2. . . . the Company, but solely
with respect to a Securities Claim.54
“Interrelated Wrongful Acts” are defined as: “all Wrongful Acts that have
as a common nexus any fact, circumstance, situation, event, transaction, cause or
series of related facts, circumstances, situations, events, transactions or causes.”55
Next, the “Prior Notice Exclusion” states:
Insurer shall not be liable for Loss on account of any
Claim: . . . J. alleging, based upon, arising out of, or
attributable to any Wrongful Act, fact, or circumstance
which has been the subject of any written notice given and
accepted under any other directors & officers policy of
which this Policy is a renewal or replacement.56
53
2015-2017 Policy § VII.A.
54
Id. § End. 13 (replacing the definition of “Wrongful Act” in § II.Q).
55
Id. § II.H.
56
Id. § End. 9 (replacing the “Prior Notice Exclusion” in § III.J).
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D. ALEXION’S NOTICES TO ITS INSURERS AND THE INSURERS’ RESPONSES
Alexion’s first relevant contact with its insurers came on June 18, 2015, when
it reported the SEC Subpoena to Chubb via a “Notice of Circumstances.”57 Chubb
responded on June 30, 2015, saying it did not consider Alexion’s June 18
communication to be a “Claim” and that Alexion would need to submit additional
notice if “an actual Claim, as defined by Section II of the Policy, arises from this
matter.”58
Turning to the Securities Action, Alexion first provided notice to its insurers
on January 5, 2017.59 Thereafter, Alexion’s insurers took differing positions. On
February 20, 2017, Chubb accepted coverage of the Securities Action under the
2015-2017 Program, expressly reserving its rights.60 Then, in October 2018, Chubb
reversed course and told Alexion the Securities Action arose from “Wrongful Acts”
or “Interrelated Wrongful Acts” reported during the 2014-2015 policy period.61 So,
Chubb’s new position was that the Securities Action, among other actions, was a
single “Claim” first made in the 2014-2015 policy period.62 In other words, Chubb
57
See Alexion’s Mot., Ex. 12 at 1.
58
Id. at 2.
59
See Alexion’s Mot., Ex. 14 at 1.
60
See generally id.
61
Alexion’s Mot., Ex. 15 at 3.
62
Id.
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ultimately decided the Securities Action was related to the SEC Subpoena.
Swiss Re, Navigators, and Endurance all held the position that there was no
coverage for the Securities Action under the 2015-2017 Program—i.e., the program
they were a part of.63 Hudson, which only participated in the 2014-2015 Program,
said the Securities Action did “not sufficiently overlap” with the SEC Subpoena and
so it was not covered under the 2014-2015 Program.64
E. THIS LITIGATION
Alexion initiated this action against Endurance, Hudson, Navigators, Old
Republic, and Swiss Re.65 Alexion asserted three causes of action: (1) breach of
contract under the 2015-2017 Program against Swiss Re, Endurance, and
Navigators; (2) a request for a declaration under the 2015-2017 Program that the
Securities Action is a “Claim” first made in the 2015-2017 policy period such that
the 2015-2017 excess policies apply to the Securities Action; and (3) an alternative
prayer for a declaration that the Securities Action is a “Claim” first made under the
2014-2015 Program such that the 2014-2015 excess policies apply to the Securities
Action.66
Alexion immediately moved for summary judgment on “relatedness,” arguing
63
Alexion’s Mot., Exs. 16-18.
64
Alexion’s Mot., Ex. 20 at 14.
65
See Compl.
66
Id. ¶¶ 87-116.
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the SEC Subpoena and the Securities Action are not related as a matter of law.67
Endurance cross-moved for summary judgment seeking an opposite determination.68
Swiss Re and Navigators jointly opposed Alexion’s Motion and sought additional
discovery into the details of the SEC investigation under Superior Court Civil Rule
56(f).69 Hudson opposed Alexion’s Motion only to the extent that Alexion
alternatively argued the Securities Action is covered under the 2014-2015
Program.70 In the face of all this, the Court partially granted Swiss Re and
Navigators’s discovery request and stayed the pending cross-motions.71
Old Republic—which hadn’t opposed Alexion’s Motion—successfully
reached an accord with Alexion. So the claims against it have been dismissed.72
Meanwhile, the other parties wrapped up the compelled discovery and embarked on
a new round of arguments. Swiss Re and Navigators, still acting in unison, followed
Endurance’s lead and filed a Cross-Motion for Summary Judgment.73 The same day,
67
See Alexion’s Mot.
68
See Endurance’s Cross-Motion for Summary Judgment (hereinafter “Endurance Mot.”) (D.I.
59).
69
See Navigators and Swiss Re’s Opp’n Br.
70
See Hudson’s Brief Opposing Alexion’s Motion for Summary Judgment (hereinafter
“Hudson’s Opp’n Br.”) (D.I. 60).
71
May 25, 2023 Judicial Action Form (D.I. 95).
72
D.I. 118.
73
See Swiss Re and Navigators’s Supplemental Brief in Opposition to Alexion’s Motion for
Summary Judgment and in Support of their Cross-Motion for Summary Judgment (hereinafter
“Navigators and Swiss Re’s Supp. Br.”) (D.I. 121).
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Endurance and Alexion filed supplemental briefs, augmenting their previous
positions with the new discovery.74 The dueling summary judgment motions are
now ready for decision.
II. THE PARTIES’ CONTENTIONS
A. ALEXION’S MOTION
Alexion maintains it is entitled to summary judgment on the issue of
“relatedness.” According to Alexion, the Securities Action is covered under the
2015-2017 Program, not the 2014-2015 Program, because the Securities Action is
not so related to the SEC Subpoena that the two should be considered one Claim.75
Specifically, Alexion argues the Securities Action doesn’t share the requisite
“nexus” with the SEC Subpoena in light of Delaware cases construing similar
insurance policies.76 Alexion says coverage under the 2015-2017 Policy would be
illusory if the 2015-2017 Insurers’ contrary interpretation is adopted.77 In the
alternative, Alexion asks the Court to find and declare the Securities Action is
covered under the 2014-2015 Program.78
74
See Alexion’s Supp. Br.; Endurance’s Supplemental Brief in Support of its Cross-Motion for
Summary Judgment (hereinafter “Endurance’s Supp. Br.”) (D.I. 119).
75
See Alexion’s Mot. at 20-25.
76
See id.
77
See id. at 29-30.
78
See id. at 30-31.
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B. THE 2015-2017 INSURERS’ CROSS-MOTIONS
The 2015-2017 Insurers take the opposite view. Their cross-motions seek a
determination that the Securities Action is related to the SEC Subpoena and,
therefore, isn’t covered by the 2015-2017 Program.79 All of the 2015-2017 Insurers
argue that coverage is excluded by the 2015-2017 Policy’s Prior Notice Exclusion
found in Section III.J thereof.80 Endurance additionally argues that the Securities
Action is a Claim first made under the 2014-2015 Program because the bases of the
SEC Subpoena and the Securities Action are “Interrelated Wrongful Acts.”81
Endurance points to Section VII.A of the 2015-2017 Policy, which states that Claims
arising from Interrelated Wrongful Acts constitute a single Claim first made at the
time of the earliest Claim.82
C. HUDSON’S OPPOSITION
Hudson, the lone 2014-2015 insurer left in this case, takes a mixed position
with regard to Alexion’s Motion. It agrees with Alexion that the Securities Action
does not relate to the SEC Subpoena such that the Securities Action should be
covered under the 2014-2015 Program.83 Hudson only opposes Alexion’s claim to
79
See Endurance’s Mot. at 2-3; Navigators and Swiss Re’s Supp. Br. at 5-6.
80
Endurance’s Mot. at 15-23; Navigators and Swiss Re’s Opp’n Br. at 15-23; Navigators and
Swiss Re’s Supp. Br. at 5-6.
81
Endurance’s Mot. at 23-26.
82
See id. (citing 2015-2017 Policy § VII.A).
83
Hudson’s Opp’n Br. at 10-11.
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coverage under the 2014-2015 if the Securities Action is placed there.84 And, insists
Hudson, it has certain defenses to coverage that Alexion has not addressed.85 So,
Hudson says, summary judgment on the ultimate question of its coverage liability as
a 2014-2015 insurer can’t be granted.86
III. APPLICABLE LEGAL STANDARD
Summary judgment is warranted “if the pleadings, depositions, answers to
interrogatories, and admission on file, together with the affidavits” show “there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.”87 The movant bears the initial burden of proving its
motion is supported by undisputed facts.88 If the movant meets its burden, the non-
movant must show there is a “genuine issue for trial.”89 To determine whether a
genuine issue exists, the Court construes the facts in the light most favorable to the
non-movant.90
The “Court may not be able to grant summary judgment ‘if the factual record
84
Id. at 11-13.
85
Id. at 12.
86
Id. at 11-13.
87
Del. Super. Ct. Civ. R. 56(c); Options Clearing Corp. v. U.S. Specialty Ins. Co., 2021 WL
5577251, at *7 (Del. Super. Ct. Nov. 30, 2021).
88
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
89
Del. Super. Ct. Civ. R. 56(e); see also Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (“If
the facts permit reasonable persons to draw but one inference, the question is ripe for summary
judgment.”).
90
Judah v. Del. Tr. Co., 378 A.2d 624, 632 (Del. 1977).
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has not been developed thoroughly enough to allow the Court to apply the law to the
factual record.’”91 But “[i]f the Court finds that no genuine issues of material fact
exists, and the moving party has demonstrated [its] entitlement to judgment as a
matter of law, then summary judgment is appropriate.”92
“These well-established standards and rules apply in full when the parties
have filed cross-motions for summary judgment.”93 Filing cross-motions for
summary judgment “does not act per se as a concession that” there are no genuine
factual disputes.94 “But, where cross-motions for summary judgment are filed and
neither party argues the existence of a genuine issue of material fact, ‘the Court shall
deem the motions to be the equivalent of a stipulation for decision on the merits
based on the record submitted with the[m].’”95
91
Radulski v. Liberty Mut. Fire Ins. Co., 2020 WL 8676027, at *4 (Del. Super. Ct. Oct. 28, 2020)
(quoting CNH Indus. Am. LLC v. Am. Cas. Co. of Reading, 2015 WL 3863225, at *1 (Del. Super.
Ct. June 8, 2015)).
92
Brooke v. Elihu-Evans, 1996 WL 659491, at *2 (Del. Aug. 23, 1996) (citing Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. Ct. 1973)); see also Jeffries v.
Kent Cty. Vocational Tech. Sch. Dist. Bd. of Educ., 743 A.2d 675, 677 (Del. Super. Ct. 1999)
(“However, a matter should be disposed of by summary judgment whenever an issue of law is
involved and a trial is unnecessary.” (citing Mitchell v. Wolcott, 83 A.2d 759, 761 (Del. 1951))).
93
Radulski, 2020 WL 8676027, at *4 n.35 (collecting cases); see also Sarraf 2018 Fam. Tr. v.
RP Holdco, LLC, 2022 WL 10093538, at *5 (Del. Super. Ct. Oct. 17, 2022); Zenith Energy
Terminals Joliet Hldgs. LLC v. CenterPoint Props. Tr., 2023 WL 615997, at *8 (Del. Super. Ct.
Jan. 23, 2023).
94
United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997).
95
Radulski, 2020 WL 8676027, at *4 (alteration in original) (quoting Del. Super. Ct. Civ. R.
56(h)).
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IV. DISCUSSION
Under Delaware law, “the principles of insurance contract interpretation are
well-established and are grounded in the parties’ intent, as expressed through their
contractual language.”96 The Court must analyze “unambiguous insurance policies
according to their ordinary meaning.”97 If an insurance contract’s language is “clear
and unambiguous, the parties’ intent is ascertained by giving the language its
ordinary and usual meaning.”98 Disagreement about a policy’s meaning does not
itself create ambiguity.99 Instead, a contract is only ambiguous when its relevant
provisions are “reasonably or fairly susceptible” to “different interpretations.”100
“Insurance contracts should be interpreted as providing broad coverage to
align with the insured’s reasonable expectations.”101 And generally, the insured’s
burden is to show that a claim falls within the contract’s coverage scope, while the
insurer’s burden “is to establish that a claim is specifically excluded.”102 Courts
interpret such exclusionary clauses with “a strict and narrow construction and give
96
Sycamore Partners Mgmt., L.P. v. Endurance Am. Ins. Co., 2021 WL 4130631, at *10 (Del.
Super. Ct. Sept. 10, 2021) (citing RSUI Indem. Co. v. Murdock, 248 A.3d 887, 905-06 (Del. 2021));
see also Options Clearing Corp., 2021 WL 5577251, at *7.
97
Sycamore Partners Mgmt., L.P., 2021 WL 4130631, at *11 (citing In re Solera Ins. Coverage
Appeals, 240 A.3d 1121, 1131 (Del. 2020)).
98
RSUI Indem. Co., 248 A.3d at 905 (internal quotation marks and citation omitted).
99
Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992).
100
Id. (citation omitted).
101
RSUI Indem. Co., 248 A.3d at 906 (citation omitted).
102
Id. (internal quotation marks and citation omitted).
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effect to such exclusionary language only where it is found to be specific, clear,
plain, conspicuous, and not contrary to public policy.”103
A. BOTH THE PRIOR NOTICE EXCLUSION AND THE DEFINITION OF
INTERRELATED WRONGFUL ACTS REQUIRE A MEANINGFUL LINKAGE.
The first step in resolving these cross-motions is determining the standard by
which relatedness must be measured. Relatedness inquiries are not governed by a
single “generic” standard.104 Rather, like all contract questions, the answer “is
prescribed by the language of the policy.”105 Nevertheless, insurers are creatures of
habit, and certain phrases tend to recur. The at-issue provisions here are no
exception.
The key phrase in the Prior Notice Exclusion is “alleging, based upon, arising
out of, or attributable to any Wrongful Act, fact, or circumstance which has been
the subject of any written notice given and accepted under [a previous D&O
policy].”106 And, stitching together the definition of “Interrelated Wrongful Act”
and the limitation in Section VII.A, the key phrase there is “arising out of” “all
Wrongful Acts that have as a common nexus any fact, circumstance, situation,
event, transaction, cause or series of related facts, circumstances, situations, events,
103
Id. (cleaned up) (citation omitted).
104
First Solar, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 274 A.3d 1006, 1013 (Del.
2022).
105
Id. (internal quotation marks and citation omitted).
106
2015-2017 Policy §§ End. 9, III.J (emphasis added).
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transactions or causes.”107
This Court has seen nearly identical language before. For example, in Options
Clearing Corporation v. U.S. Specialty Insurance Company, this Court interpreted
a “Prior Notice Exclusion” that barred coverage for claims “‘arising out of, based
upon or attributable to facts or circumstances alleged, or to the same or related
Wrongful Acts alleged or contained’ in any Claim that already has been reported.”108
Just weeks before, the Court had interpreted an “Interrelated Claims Provision” that
limited coverage for claims that “‘arise out of,’ ‘result from,’ ‘are in consequence
of,’ or ‘in any way involve,’ ‘the same or related . . . facts, circumstances, situations,
transactions or events.’”109 In both instances, the Court reached the same conclusion
about the applicable standard for relatedness: “meaningful linkage.”110
That same standard is used here. The meaningful linkage standard’s
applicability to the Prior Notice Exclusion is obvious. The language of that
exclusion is almost word-for-word the at-issue language in Options Clearing.
Applying the same standard to the definition of Interrelated Wrongful Acts requires
just a bit more analysis.
107
Id. §§ VII.A, II.H (emphasis added).
108
2021 WL 5577251, at *8.
109
Sycamore Partners Mgmt., L.P., 2021 WL 4130631, at *11 (omission in original).
110
Options Clearing Corp., 2021 WL 5577251, at *8-9; Sycamore Partners Mgmt., L.P., 2021
WL 4130631, at *12.
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As a starting point, Section VII.A’s limitation applies only to Claims “arising
out of” Interrelated Wrongful Acts. So, Section VII.A’s plain language itself
suggests a meaningful link is required to trigger the limitation.111 The definition of
Interrelated Wrongful Acts adds the notion of a “common nexus.” But that phrase
has a similar meaning in this context.
In Pfizer Inc. v. Arch Insurance Company, this Court looked at a “definition
of ‘Interrelated Wrongful Acts’” that—like the one here—meant “Wrongful Acts
that have as a common nexus any fact, circumstance, situation, event, transaction,
cause or series of causally connected facts, circumstances, situations, events,
transactions or causes.”112 Pfizer explicitly cautioned against interpreting that
language to mean “shar[ing] ‘any’ commonality” suffices to make two claims
related.113
In Sycamore Partners, this Court described the “common nexus standard” as
requiring that claims “share material facts.”114 There is little practical difference
111
See Pac. Ins. Co. v. Liberty Mut. Ins. Co., 956 A.2d 1246, 1257 (“[U]nder Delaware law, the
term ‘arising out of’ is broadly construed to require some meaningful linkage . . . .”).
112
2019 WL 3306043, at *5 (Del. Super. Ct. July 23, 2019) (emphasis omitted), abrogated by,
First Solar, Inc., 274 A.3d at 1013. Pfizer was abrogated by First Solar to the extent it relied on
the “fundamentally identical” standard for relatedness.
113
Id. at *9 (“This reading is strained, uncharacteristically broad, and runs afoul of this Court’s
prior interpretation standards set forth in previous cases.”).
114
Sycamore Partners Mgmt., L.P., 2021 WL 4130631, at *10.
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between two claims having a meaningful link and sharing material facts.115 Indeed,
Sycamore Partners outlined an expansive list of phrases that define relatedness—
including the particularly broad phrases “flowing from” and “in any way
involv[ing]”—that have all been held to implicate the meaningful link standard.116
And the parties here have offered no textual basis to depart from that approach. So
the Court will apply the meaningful linkage now.
B. THE SEC SUBPOENA AND THE SECURITIES ACTION
AREN’T MEANINGFULLY LINKED.
With it established that a meaningful linkage is required to bar coverage under
either Section VII.A or Section III.J of the 2015-2017 Policy, the remaining question
is whether such a link exists between the SEC Subpoena and the Securities Action.
It does not.
Our Supreme Court recently addressed the meaningful linkage standard in the
context of a professional services exclusion in a management liability policy.117 The
insured in that case, Guaranteed Rate, was penalized for violations of the False
Claims Act because it falsely underwrote federally insured loans that were ineligible
115
The key word here is “material.” Sharing “background facts in common” is not a meaningful
linkage, nor are background facts material. Id. at *14; see also MidFirst Bank v. Mullane, 2023
WL 8926867, at *2 (Del. Super. Ct. Dec. 26, 2023) (explaining material facts are those “that might
affect the outcome of the suit” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1968))).
116
Sycamore Partners Mgmt., L.P., 2021 WL 4130631, at *12 (collecting cases).
117
ACE Am. Ins. Co. v. Guaranteed Rate, Inc., 305 A.3d 339 (Del. 2023).
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for government backing.118 The insurer claimed those violations arose out of
Guaranteed Rate’s professional services—i.e., underwriting loans—and were thus
excluded under the management liability policy.119 Not so, said the Court.
The Supreme Court explained that the “linkage must be meaningful, not
tangential.”120 It concluded that although there may have been some causal
connection between the underwriting and false certifications “[i]n a technical sense,”
“a meaningful linkage is absent given the difference between the subject of the FCA
claims—false certifications—and the underlying conduct used to demonstrate the
falsity of the claims—underwriting loans.”121 The Court reasoned that interpreting
the professional services exclusion to include “incidental” connections with
professional services would render the exclusion unduly broad.122
In contrast, the Supreme Court found a meaningful linkage in Eon Labs
Manufacturing, Inc. v. Reliance Insurance Company.123 There, the relevant policy
excluded coverage for third-party bodily injury claims “arising out of [the insured’s]
products.”124 The insured faced liability for harms that resulted from users
118
Id. at 341.
119
Id. at 343-44.
120
Id. at 349.
121
Id. at 347-48.
122
Id. at 348.
123
756 A.2d 889 (Del. 2000).
124
Id. at 891.
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combining its drug with other drugs.125 The Court found a meaningful linkage
between the insured’s product and the bodily injury claims because “the basis” of
the bodily injury suits was “the involvement or presence of [the insured’s drug.]”126
In Options Clearing, this Court clarified that when looking for a meaningful
link, “it is not enough for two claims to mention some of the same facts.”127 There,
the insured had initially faced SEC scrutiny based on “several points where [the
insured]’s documentation and practices were not in compliance with securities laws
and regulations or otherwise were insufficient.”128 A D&O policy issued after that
SEC intervention barred coverage for the insured’s “ongoing noncompliance and
violations of the securities laws reflected in the SEC’s findings.”129 Thereafter, the
insured faced new enforcement actions by the SEC and the Commodity Futures
Trading Commission.130 Applying the meaningful linkage standard, this Court
concluded the actions were not related because they (1) involved different types of
investigations; (2) occurred in different time periods; (3) involved different
regulations; (4) sought different relief; and (5) “[p]erhaps most significantly, . . .
125
Id. at 890.
126
Id. at 893.
127
2021 WL 5577251, at *8 (citing Sycamore Partners Mgmt., L.P., 2021 WL 4130631, at *14).
128
Id. at *3.
129
Id.
130
Id. at *4-5.
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differ[ed] in the type of wrongful conduct that is alleged.”131
Similarly, our Supreme Court in First Solar considered whether two actions
were related and evaluated: (1) the parties; (2) the relevant time period; (3) the
overall theory of liability; (4) a sampling of relevant evidence; and (5) the claimed
damages.132 The Court applied those factors and found the two First Solar actions
were “substantially similar and fundamentally identical.”133
Guided by those examples, the Court is convinced that the SEC Subpoena and
Securities Action are not meaningfully linked. The SEC Subpoena and Securities
Action are only loosely connected by Alexion’s activities in Brazil. And that
tangential link is not enough to make the two related for purposes of the 2015-2017
Policy.
The SEC Subpoena was broadly concerned with Alexion’s compliance with
the FCPA.134 And, while Brazil was specifically referenced in the SEC Subpoena,
so too were Japan, Turkey, and Russia.135 Indeed, the SEC’s eventual findings
focused on conduct related to Turkey and Russia, and only briefly mentioned
Alexion’s conduct in Brazil.136 The SEC’s findings only charged Alexion with
131
Id. at *9.
132
First Solar, Inc., 274 A.3d at 1014.
133
Id. at 1016.
134
SEC Subpoena at ALXN000011 to ALXN000016.
135
Id. at ALXN000013.
136
See SEC Settlement at 3-6.
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failing to keep adequate books and records and not maintaining “sufficient internal
accounting controls over the payments to foreign officials and third parties.”137 That
is wholly different from the conduct alleged in the Securities Action.
The Securities Action plaintiffs argued that Alexion and its directors
artificially inflated Alexion’s value through an array of misdeeds.138 Of the wrongful
conduct alleged in the Securities Action, Alexion’s activity in Brazil is but a small
part. The “fraudulent scheme” alleged in the Security Action Amended Complaint
spans more than sixty paragraphs.139 Only nine of those paragraphs mention foreign
contributions.140 And unlike the SEC Subpoena—which was focused on the
propriety of the contributions and the reporting thereof—the Securities Action is
only concerned with the use to which the contributions were put.141 In other words,
the Securities Action plaintiffs don’t complain that Alexion improperly made
payments to AFAG, they complain that AFAG used those payments to defraud the
Brazilian government and falsely inflate Alexion’s stock price.
The Court recognizes that the Securities Action plaintiffs considered the
SEC’s findings that resulted from the SEC Subpoena to be useful evidence in their
137
Id. at 7.
138
Securities Action Am. Compl. ¶¶ 7-25.
139
Id. ¶¶ 102-67.
140
Id. ¶¶ 105, 155-62.
141
Id. ¶¶ 155-62.
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case.142 But that’s of little moment. First, it is unremarkable that ably represented
litigants would portray any available evidence as favorable to them. More
importantly, the Securities Action plaintiffs did not argue that the SEC’s findings
directly proved any of their allegations. Instead, they said that the SEC’s findings
helped to “demonstrate[] a sustained pattern of illegal and unethical conduct in the
sales and marketing of Soliris, which adds to the already strong inference of scienter
against Defendants.”143 Though accusations of general wrongdoing may lend
support to the sweeping allegations in the Securities Action, such abstract notions
are not helpful to a relatedness analysis.144
V. CONCLUSION
At bottom, the factual connection between the SEC Subpoena and the
Securities Action is insufficient to make them related. They have different parties;
focus on overlapping, but not identical, time periods; raise entirely different theories
of liability; rely on different evidence; and seek different relief. Accordingly, the
supposed “nexus” of Alexion’s conduct in Brazil is too insubstantial to make the two
related for purposes of the 2015-2017 Policy.
142
See Navigators and Swiss Re’s Supp. Br., Ex. BB.
143
See id. at 2.
144
See AmTrust Fin. Servs., Inc. v. Liberty Ins. Underwriters Inc., 2022 WL 980299, at *5
(D. Del. Mar. 31, 2022) (explaining that characterizing conduct at “a high level of abstraction” for
purposes of relatedness can lead to illusory coverage).
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Alexion’s Motion for Partial Summary Judgment on its first two counts is
GRANTED and the 2015-2017 Insurers’ Motions for Summary Judgment are
DENIED. The at-issue claim is properly placed in the 2015-2017 coverage tower.
IT IS SO ORDERED.
___________________
Paul R. Wallace, Judge
Original to Prothonotary
cc: All Counsel via File and Serve
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