Insurers obligated to cover $568M Pfizer class action, court says
A court ruled that exclusions in insurance policies issued to Pfizer did not preclude coverage for class action settlement.
A Delaware court has ruled that exclusions in insurance policies issued to Pfizer Inc. did not preclude coverage for the $568 million it agreed to pay to settle a securities fraud class action.
The case
In December 2004, Philip Morabito sued Pfizer and Henry A. McKinnell, then Pfizer’s board chair and chief executive officer, on behalf of those who purchased Pfizer’s common stock between November 1, 2000 and December 16, 2004 (class period). The suit alleged two claims under the Securities and Exchange Act of 1934: violations of Section 10(b) and Section 20(a) of the 1934 Act and the rules promulgated thereunder.
On or about March 27, 2012, an amended complaint was filed that revised the causes of action, named four additional individual defendants (who were directors, officers, and employees of Pfizer), and amended the class period to October 31, 2000 through October 19, 2005. The amended complaint alleged that Pfizer and the individual defendants had made false representations and omissions regarding the cardiovascular risks associated with two of Pfizer’s drugs: Celebrex and Bextra.
On December 21, 2016, the district court granted final approval of a settlement of the class action pursuant to which Pfizer agreed to pay $486 million on behalf of itself and the individual defendants. In addition to the settlement award, Pfizer, on behalf of all defendants, incurred more than $82 million in defense costs.
Arch Insurance Company and U.S. Specialty Insurance Company, which had issued excess directors and officers (“D&O”) insurance policies to Pfizer, denied coverage for the class action, claiming that coverage was barred by exclusions in the insurance policy issued to Pfizer by its primary carrier, National Union Fire Insurance Co., to which their policies generally “followed form.”
That was so, the insurers argued, that the D&O policies’ exclusions precluded coverage because the class action was either a claim “arising out of…” or shared “as a common nexus any fact, circumstance…” with Garber v. Pharmacia Corp., a securities fraud class action lawsuit brought by shareholders of Pharmacia Corporation (which Pfizer acquired in April 2003) who purportedly incurred financial losses as a result of false and misleading statements regarding Celebrex’s gastrointestinal health risks.
Pfizer asked a Delaware court to declare that the insurers were obligated to pay for the costs it incurred in connection with the defense and settlement of the Morabito class action.
The parties moved for summary judgment.
The insurers posited that because the Morabito action and the Garber action contained overlapping and common allegations regarding Pfizer’s and Pharmacia’s allegedly fraudulent misrepresentations and omissions concerning the safety of Celebrex, the two actions were unquestionably related.
For its part, Pfizer contended that although the two actions involved securities claims concerning the drug Celebrex, they were unrelated for purposes of the D&O policies because they implicated “different plaintiffs, different defendants, different alleged harms, and different alleged wrongful conduct committed by different people.”
The exclusions
The “specific litigation exclusion” in the National Union policy, which was similar to the specific litigation exclusions in the insurers’ policies, provided that the insurers were not liable for any:
Loss in connection with any claim(s) alleging, arising out of, based upon, attributable to or in any way related directly or indirectly … to a related Breach of Fiduciary Duty or a related Wrongful Action alleged
in a lawsuit entitled Robert L. Garber v. Pharmacia.
The “related wrongful acts exclusion” precluded coverage for loss in connection with claims made against an insured:
alleging, arising out of, based upon or attributable to the facts alleged, or to the same or related Wrongful Acts alleged or contained in any Claim which has been reported, or any circumstances of which notice has been given, under any policy of which this policy is a renewal or replacement or which it may succeed in time.
The decision
The district court, applying Delaware law, granted Pfizer’s motion, ruling that the Morabito action and the Garber action were “not fundamentally identical.”
In its decision, the district court reasoned that although both were class action lawsuits alleging securities violations, the two actions did not cover the “same subject” and the exclusions, therefore, did not preclude coverage. The district court pointed out that the Garber case was brought by Pharmacia’s shareholders seeking redress for allegedly fraudulent and misleading statements Pharmacia and its co-marketer Pfizer made regarding the gastrointestinal health risks of Celebrex.
Specifically, the district court continued, the Garber plaintiffs alleged that Pharmacia and Pfizer publicly misrepresented the results of a study to create the impression that Celebrex users “had fewer upper-GI toxic effects than those who took other traditional NSAIDs” all-the-while knowing that the study as originally designed did not demonstrate a superior GI safety profile for Celebrex over traditional NSAIDs.
On the other hand, the district court observed, the Morabito plaintiffs brought suit against Pfizer and some of its executives for false representations and omissions regarding the cardiovascular risks associated with Celebrex and another drug, Bextra. Despite including the same study among the list of material information the defendants in the Morabito action had access to, the alleged market harm in the Morabito action stemmed specifically from the defendants “repeatedly touting internal safety data which they claimed demonstrated cardiovascular safety” while they “were in possession of completed drug safety studies and other data and information which documented the serious cardiovascular risks of Celebrex and/or Bextra.”
In short, the district court found, although there may be some thematic similarities, the two actions were “truly, in all relevant respects, different.” It concluded that the wrongs alleged in the Garber and Morabito actions involved “entirely distinct misrepresentations of very different health risks associated with Celebrex” and were “not fundamentally identical.”
Therefore, the exclusions in the D&O policies did not excuse the insurers’ coverage obligations.
The case is Pfizer Inc. v. Arch Ins. Co.
This article first published on law.com.
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