The District Court of Massachusetts' January 6, 2015 opinion
in Biochemics, Inc. v. Axis Reinsurance Co., 2015 WL 71493 (D.
Mass. Jan. 6, 2015), reaffirms the importance of providing timely
notice of all D&O liability claims – including subpoenas.
In Biochemics, the policyholder sought coverage from its primary
D&O liability insurer, Axis, for defense costs it incurred in
an SEC enforcement action commenced during the AXIS policy period.
Judge Rya Zobel held that Biochemics had no coverage for the SEC
enforcement action because it related back to two deposition
subpoenas that the SEC served on Biochemics before the AXIS policy
incepted. Because those deposition subpoenas indicated on their
face that the SEC had commenced a formal investigation against
Biochemics, each subpoena was a "Claim" that should have
been reported to Biochemics' prior D&O carrier. Because the
Claim was "first made" before the AXIS policy period,
Judge Zobel granted AXIS' motion for summary
