Professional Liability Risks and Trends Series: Greg Markel

In this ongoing blog series, PLUS collaborates with seasoned industry professionals to delve into the latest market trends. In this particular edition, we shine a spotlight on Greg Markel, a distinguished trial lawyer at Seyfarth. During our interview with Greg, he provided valuable insights into litigation trends and risks within the D&O market, offering a unique perspective informed by his legal expertise.

To start, please describe how your reputation has evolved in the professional liability insurance (PLI) industry.

Greg Markel is well known to many in the PLI industry as an outstanding trial lawyer for many years, a strong advocate for his clients, a recognized expert in securities law, antitrust law, derivative litigation and corporate governance.  He is also the Chairman and Founder of the Center for Corporate Governance at the New York County Lawyers Association and, importantly to him, a member of PLUS for 15 years.  In that time he has appeared a number of times on PLUS panels and webinars and represented clients in large securities class action cases and has always engendered the respect of insurers by his professionalism manifested in several ways. One is his knowledge of the applicable law and the skills of an accomplished advocate, and two is understanding the insurance business and interests of insurers.  Third is the respect he shows to others in litigation, the PLI Industry and officers and employees in other business fields.. even if they have conflicting interests.  His standing within the PLI industry is well illustrated by the many PLI executives who have hired him and/or participated in his webinars and/or complimented his writings.

His standing in the legal community is illustrated by the recognition he has received.  He has for 20 years been highly ranked by Chambers for Securities Litigation.  He has been named by Best Lawyers as Lawyer of the Year for M&A Litigation several times, and for outstanding work securities and antitrust litigation many times. LawDragon magazine inducted Mr. Markel into its Hall of Fame and recognized Mr. Markel as a legend and currently a top 500 lawyer.  He has also been recognized by many other publications including by Benchmark Litigation as a National Litigation Star and by Super lawyers, Legal 500 and Whos Who in law.

He encounters D&O Insurance executives frequently in securities cases including such giant and multi-party matters as Enron, Worldcom, the 300 IPO cases, credit crises cases galore and many more.  He frequently encounters  members of the industry at PLUS conferences and webinars as well as at other industry events.

Greg is a graduate of Columbia College with a major in economics, Michigan’s Ross School of Business where he was awarded an MBA with distinction and Yale Law School.

He has insatiable intellectual curiosity not only with respect to securities litigation, but many other areas as well, including principles of corporate governance and derivative litigation.  He has  a deep understanding  of these issues and many other issues relevant and  important to the insurance industry.

His vast experience has given him a strong understanding of the insurance business and of D&O policies.  He believes strongly that when defendants counsel treat  insurers and their counsel with  respect in the battle against class action claims, both insurers and defendants usually get better results.  It has made him well-known in the PLI industry.

Are there any current trends in the industry that you are keeping an eye on?

Among the current and emerging trends I watch are the increase in numbers of derivative both in cases filed and increasing settlement amounts.  I am closely watching the fate of oversight cases in the courts to see if the post Caremark case law has  evolved in ways that will affect potential liability for the board and for officers and the insurer.  Another trend is the increase in large corporation bankruptcies after several years of low levels of such claims.  A third is the litigation arising out of ESG.  What effect will  the political wars now emerging and new SEC rules have  on ESG and ESGs success.

What make these trends worth keeping an eye on?

All these issues have the common characteristics of possible additional costly litigation that will involve claims on insurance  for defense expenses, settlements and judgments.

What are the top emerging risks for the insurance industry?

Increased derivative claims and increased bankruptcy filings  and increased oversight claims against directors and recently developing oversight claims against officers, their risks will likely become greater particularly if they coincide with a possible recession in the U.S. economy.

If someone is interested in learning more about these topics are there other resources you would recommend for more information?

I follow litigation trends because I am a securities trial lawyer and need to understand the latest in legal analysis and where plaintiffs are putting their efforts and money.  However, I also find these issues intellectually interesting.  I also follow the financial markets because trends in those markets often cause or increase the frequency of securities litigation and an increase in bankruptcy claims results in derivative litigation and oversight claims.

The specific sources for information I rely on include court opinions, Law 360, Practical Law, D&O Diary and the articles of various individual lawyers like me and my colleagues at Seyfarth and my friends in the business at other firms. Bar Associations also often dispense useful information through webinars and articles.

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In collaboration with other industry leaders Gina Ferrari and Sarah Fedner, Greg and his colleagues penned an insightful flipbook titled Corporate Governance: The Duties, Responsibilities, and Potential Liabilities of Directors and Officers that delves deep into the nuances of modern corporate governance. Gain valuable insights and stay ahead of the corporate landscape with their authoritative analysis and expert recommendations in this must-read piece. Check it out below.