Getting an A in Insurance: Analyzing Antitrust, Admissions, Athletics, and other D&O Issues in Higher Education Webinar Recap

During our most recent PLUS webinar, industry professionals came together to discuss the evolving D&O liability landscape in higher education. Colleges and universities are facing an increasingly complex set of legal, regulatory, and political pressures that are reshaping institutional risk and liability. From antitrust litigation and admissions practices to employment-related challenges, these issues demand heightened oversight from boards, officers, and their professional liability advisors. Below are some key topics explored by the panelists.

Antitrust Risks: The Hidden Dangers of Collaboration

Colleges and universities face serious antitrust risks when they collaborate on financial aid or admissions practices. Recent lawsuits show that even well-intentioned cooperation can lead to significant legal exposure, with settlements reaching hundreds of millions of dollars. These cases often involve claims that institutions coordinated financial aid standards in ways that reduced student awards, or enforced shared admissions agreements through third-party organizations. Any agreement related to financial aid or admissions can create antitrust risk, and sharing information about pricing or aid decisions is especially high risk.

Race-Conscious Admissions: Walking a Legal Tightrope

Following recent Supreme Court decisions, colleges and universities can no longer consider race as a factor in admissions decisions. Many schools have responded by using race-neutral factors, such as first-generation status, income level, geographic background, and other socioeconomic factors, to support student diversity. These approaches, however, are now under closer review from government agencies and private groups. Recent executive orders now require schools to report detailed admissions data, signaling increased oversight. As a result, admissions policies and outcomes are likely to be closely examined, and changes in enrollment at some elite institutions show how strongly these legal shifts are already affecting who gets admitted.

Employment Practice Liability: The Student-Athlete Question

Colleges and universities are facing growing legal risk over whether student-athletes should be treated as employees. Federal courts are increasingly allowing lawsuits to move forward in which athletes seek wages and benefits, challenging the traditional amateur sports model. At the same time, expanded compensation tied to name, image, and likeness has created new compliance challenges, especially under gender equity laws. When compensation is focused on revenue-producing sports, the risk of discrimination claims increases. In addition, recent government actions suggest closer scrutiny of institutions that receive federal funding, including potential use of fraud laws and increased review of civil rights compliance, campus climate, and diversity programs.

Insurance Implications: Preparing for the Storm

Underwriters are approaching higher education risks with increased caution, reflecting the unique challenges facing the sector. Smaller schools are especially concerned about financial stability due to declining enrollment and the high cost of maintaining campus facilities. Larger, well-known institutions may also be targeted as test cases for new legal or policy challenges. As a result, insurance professionals should closely review key coverage areas, including whether all related entities are properly insured, whether there is enough coverage for legal defense costs tied to government funding issues, antitrust and class action exposure, and employment practices liability limits related to discrimination claims.

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Meet the Speakers

Jennifer Weinstein is a results-oriented claims leader with extensive litigation management experience. She serves as Vice President of Management Liability Claims at Skyward Specialty Insurance with expertise in management liability lines, including Directors & Officers (D&O) liability, Employment Practices Liability (EPL), Fiduciary liability, Crime, and Errors & Omissions (E&O) liability.

In her role, JW frequently collaborates with direct reports, brokers, insureds, risk managers, human resources professionals, and senior leadership on all aspects of investigation, strategy, resolution, and negotiation. She is also a regular speaker at industry conferences, sharing insights on employment practices and D&O issues.

Justin Kudler is Senior Vice President/Senior Claims Counsel in ARC Claims Advocacy, working with clients and insurers to achieve favorable claim resolutions. Before ARC, Justin worked at AXA XL, handling D&O, E&O, EPL, and other professional liability claims. In private law practice, Justin represented defendants and plaintiffs in securities and consumer class actions, as well as individuals in SEC investigations.

He has served as PLUS D&O Symposium Co-Chair and as a Hartford PLUS Chapter Steering Committee Member, including a year as Chair. For several years, he has taught D&O Claims Management for PLUS D&O University and currently is a PLUS D&O Think Tank member. He also has served on several PLUS task forces, including as Chair. Justin has published articles on D&O insurance issues, the Private Securities Litigation Reform Act of 1995, and other securities and class action issues. He also has moderated and has spoken on panels covering topics including claim handling, claim trends, insurance for financial institutions, and regulatory investigations.

Nelson Kefauver is a seasoned insurance executive with more than 25 years of experience in financial and professional lines underwriting. He currently serves as Head of Financial and Professional Lines, North America, at Intact Insurance—a role he assumed after joining the company in 2019 as President of Management Liability.

Before joining Intact, Nelson served as Chief Underwriting Officer for Management Liability at another leading insurer.

His career began in the U.S. Army, where he served as an Intelligence Specialist, instilling a disciplined and analytical approach that has shaped his success in the corporate world.

Robert Litan, Esq. is a Partner at Berger Montague, where he plays a leading role in complex antitrust and competition litigation involving higher education, technology, telecommunications, financial institutions, and health care markets. His matters include high-profile cases against elite private universities, Ivy League institutions, Google, and T-Mobile, each involving sophisticated economic and regulatory issues central to professional liability exposures. One of the few practicing lawyers with a PhD in economics, Dr. Litan brings rare depth to matters requiring economic analysis, expert testimony, and regulatory scrutiny, and has served as a testimonial expert in more than 20 proceedings. His combined legal, economic, and government experience makes him a sought-after authority on complex litigation and risk issues relevant to the professional liability landscape.