August 13, 2026
In a case involving application of a “Bump-Up Clause,” London Fischer LLP attorneys Daniel W. London and Jan H. Duffalo obtained summary judgment on behalf of their client in Zayo Group Holdings, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., et al. in Delaware Superior Court. London Fischer’s client had issued Directors & Officers (D&O) insurance, along with two other D&O insurers, to the policyholder. The policyholder sought insurance coverage for a $27.125 million settlement which resolved a shareholders’ suit arising out of the acquisition of the policyholder company in a reverse triangular merger. The provision at issue was the “Bump-Up Clause” within the definition of “Loss.” The Bump-Up Clause states that “Loss” does not include any amount of any judgment or settlement that represents an effective increase in consideration from an acquisition. The Court, relying on the fact that the settlement was paid on a per-share basis only to those shareholders who held stock at the closing and received consideration in the acquisition, found that the settlement represented compensation for an inadequate deal price. The Court thus concluded that the Bump-Up Clause applied and granted the D&O insurers’ motion for summary judgment.
