Edward Kirk

Full Profile

Edward (Ned) J. Kirk is a partner in our New York office. He represents domestic and international insurers and reinsurers in commercial insurance matters, including professional liability, directors’ and officers’ liability (D&O), fiduciary liability, errors and omissions, fidelity, commercial crime, general liability, reps and warranties, property, business interruption and cyber risk claims. He has successfully defended insurers in complex and high dollar value coverage and bad faith litigation in federal and state courts across the United States and has extensive experience resolving coverage disputes and underlying claims through alternative dispute resolution proceedings, including mediation, arbitration and CPR mini trial.

Ned has handled numerous high profile insurance matters involving financial institutions and D&O coverage and claims arising from fraudulent schemes, regulatory investigations, shareholder litigation and other types of complex commercial lawsuits against financial institutions, public companies, investment advisors and their directors and officers.

Many of Ned's cases involve cross border legal issues and exposures in jurisdictions outside of the United States. He works closely with Clyde & Co's offices in Europe, the Middle East, Asia, Australia and South America on international claims investigations and coverage litigation and arbitrations. He frequently advises insurers in the United States, Europe and Asia regarding policy wording, underwriting issues and product development.

He is recognized as a leading insurance lawyer by Chambers USA, where clients have commented that "Ned’s strengths lie in his thorough analysis, attention to detail and quality work product," and "Ned is a tremendous asset to his firm. Not only do we know we can rely on a high level of service and responsiveness, he has a deep understanding of our sector and a tremendous network of resources to tap into." 

Ned also holds an AV Peer Review Rating, the highest ranking for legal ability and general ethical standards, from Martindale-Hubbell. 

He is a frequent speaker at insurance industry and Clyde & Co events around the world, has published numerous articles on various topics relating to commercial insurance law and financial institution risks, and is often asked to comment on professional liability insurance risks and trends.

Admissions

• New York
• Connecticut
• US District Courts for the Southern, Eastern and Northern Districts of New York
• US Court of Appeals for the Second Circuit

Education

• J.D., Columbus School of Law, Catholic University of America, 1997
• B.A., History, Columbia College, Columbia University, 1992

Memberships

• American Bar Association
  • Tort Trial and Insurance Practice Section
• Claims & Litigation Management Alliance
• New York Bar Association
• Professional Liability Underwriting Society (PLUS)

Experience

• Insurance broker in an action in the US District Court for the Southern District of New York regarding political violence reinsurance relating to seizure of a warehouse in Afghanistan. 
• Fidelity insurer in coverage and breach of implied covenant action in the US District Court for the Northern District of New York that resulted in dismissal of all claims against our client on a motion to dismiss. On appeal, the US Court of Appeals for the Second Circuit held that a contractual limitation period applied equally to breach of contract and breach of implied covenant claims because both claims originated from the same loss, and a bare allegation that the insurer stated it was open to additional information in support of a claim did not estop it from relying on the policy’s suit limitation clause.
• D&O insurer in arbitration before the Hong Kong international Arbitration Centre that resulted in dismissal of claims for coverage after hearing. 
• Excess E&O insurer in a coverage action in the US District Court for the Northern District of Illinois seeking coverage for claim for copyright infringement that resulted in dismissal of all claims against our client on a motion to dismiss. 
• Fidelity insurers in an American Arbitration Association arbitration that resulted in dismissal of claim for over USD 300 million in coverage after hearing.
• Excess D&O insurer in a coverage action before the US District Court for the District of Delaware after removal from Delaware Superior Court, and related petition filed in the US District Court for the Southern District of New York seeking to enjoin arbitration against our client, regarding coverage for a securities class action and related lawsuits arising out of a take private transaction. 
• Fidelity insurers in a bad faith coverage action in the US District Court for the District of the Virgin Islands seeking computer crime coverage for social engineering losses.
• D&O insurer in a bad faith coverage action in the US District Court for the Northern District of Illinois seeking coverage for defense costs and settlement of lawsuits relating to cancellation of global tradeshow due to COVID-19.
• Fidelity insurers in a bad faith coverage action in the US District Court for the Northern District of Texas seeking coverage for purported loan losses of USD 24 million. 
• D&O insurer in a coverage action in Superior Court of Delaware seeking coverage for defense costs and a settlement in an underlying securities class action in the US District Court for the Eastern District of Virginia.
• D&O insurer in a bad faith coverage action in the US District Court for the Southern District of New York that resulted in dismissal of all claims on a motion to dismiss.
• Fidelity insurers in a coverage action brought by Freddie Mac in US District Court for the Southern District of New York seeking coverage for USD 111 million in mortgage losses.  
• Professional liability insurers in a coverage action in Georgia Superior Court seeking USD 475 million in coverage for losses arising from the subprime crises and ensuing credit crunch.
• Fidelity insurers in a coverage action brought by Lehman Brothers in New York Supreme Court seeking coverage for purported credit losses in Japan of over USD 300 million.
• Professional liability insurers in a bad faith coverage action in the US District Court for the Eastern District of Texas regarding a claim for defense costs and counter claims for rescission and recoupment.
• Professional liability insurers in a coverage action brought by J.P. Morgan as successor to Bear Stearns in New York Supreme Court seeking coverage for almost USD 200 million in settlements and defence costs relating to mutual fund market timing and late trading.
• D&O insurer in bad faith action in the US Bankruptcy Court for the District of Delaware that resulted in dismissal of all claims on motion for judgment on the pleadings.
• Professional liability insurers in multiparty litigation in New Jersey Superior Court and Delaware Superior Court regarding claim for USD 260 million in judgment and defence costs in an underlying securities class action.
• Property insurer in a bad faith coverage action in the US District Court for the Eastern District of New York that resulted in summary judgment dismissing extra contractual and tort causes of action and claims for USD 13 million in damages.
• Property insurer in a bad faith coverage action in New Jersey Superior Court arising from a claim for coverage under an international property insurance policy for USD 8 million in losses from potential contamination of collagen products with mad cow disease at a plant in the Netherlands.
• Fidelity insurers in a coverage action in New York Supreme Court brought by a broker dealer seeking coverage for purported trading losses of over USD 100 million. 
• Commercial crime insurer in binding mediation that resulted in the dismissal of a USD 13 million claim relating to commodities trading losses.
• D&O insurer in an American Arbitration Association arbitration that resulted in summary judgment dismissing a USD 7 million claim for defense costs.
• D&O and professional liability insurers and reinsurers in claims investigations and coverage litigation relating to major financial scandals, including Enron, IPO allocation, analyst conflicts, mutual fund market timing and late trading, options backdating, subprime lending, various Ponzi schemes, including Madoff, Dreier and Rothstein, and high frequency trading, and the collapse of financial institutions, including Lehman Brothers, MF Global and various mortgage originators and servicers. 
• Fidelity and crime insurers in investigations of claims and fraudulent schemes in the United States, Canada, Japan, China, Argentina and Bermuda.

Presentations

• Panelist, International Warranty & Indemnity (Reps & Warranty) Claims Trends, Clyde & Co Annual Conference, London, 2018, 2021-2024
• Panelist, European Financial Lines & D&O Conferences, Clyde & Co Annual Conference, Madrid, Dusseldorf, Munich and Paris, 2017-2024
• Presenter, Banking Crisis 2023 and Implications for Financial Institution and D&O Insurers, Client Webinars, May and June 2023
• Panelist, Financial Institutions and D&O Asia Pacific Conferences, Clyde & Co Annual Conference, Singapore, Hong Kong, Shanghai, Beijing, Melbourne, Brisbane, Perth and Sydney, 2013-2024
• Chair, "US Litigation School," Clyde & Co Annual Conference, London, 2018-2024
• Moderator, "Social Engineering: The Threat, Regulatory Approach and Market Response," Clyde & Co Global Financial Institutions and D&O Conference, London, October 2019
• Panelist, "Liability Risks and Emerging Duties of Care – A Global Taxonomy of the State of Litigation, Regulation and Standard-Setting," Willis Towers Watson and Clyde & Co Climate Change Liability Risk Conference, London, England, July 2019
• "Coverage Issues Regarding 'Loss' Under Financial Institutions and D&O Policies," Continuing Legal Education Presentations, June and November 2018
• Panelist, "Financial Lines Global Liability and Regulatory Trends," MENA and India Financial Lines Symposium, Muscat, Riyadh, Dubai, Doha, Bahrain, Kuwait, New Delhi and Mumbai, 2015-2018
• "Depositions in US Coverage Actions," Client Conference, London, April 2018
• "The Economics of Risk; Insurance in the Age of Globalization and High Tech," Leiden University, The Hague, The Netherlands, April 2018
• Moderator, "Quantum in Securities Claims – A Global Perspective," and Speaker, "Disgorgement as A Penalty: The Impact of Kokesh v. SEC," Clyde & Co Global Financial Institutions and D&O Conference, London, October 2017 
• "Climate Change and Directors and Officers Liability," Client Conference, London, January 2017
• Panelist, "US Litigation Workshop," Moderator, "Warranty and Indemnity Insurance – Reflections on a Maturing Market," Clyde & Co Annual FI/D&O Conference, London, October 2016
• Moderator, "What is Covered Loss?" Clyde & Co Annual FI/D&O Conference, London, October 2015
• Moderator, "Cyber Crime: Crime of the 21st Century?" 2014 PLUS Professional Risk Symposium, Atlanta, April 2014
• "The Impact of Mergers and Acquisitions on Coverage," The Fidelity Law Association 2013 Annual Conference, Boston, November 2013
• Moderator, "Key Issues for the London FI and D&O Market," Clyde & Co Annual FI/D&O Conference, London, October 2013
• Panelist, "The Growing Concerns of Cyber Crime: Potential Gaps in Coverage Between Crime and Cyber Liability Coverage," PLUS Conference, New York, September 2013

Publications

• Co-author, “Second Circuit Rules that Crime Policy’s Suit Limitation Provision Bars Breach of Implied Covenant Claim,” Clyde & Co publication, December 2022
• Contributor, “A Global Guide to the Insurability of Fines and Penalties,” Clyde & Co and Marsh joint publication, October 2022
• Co-author, “Shareholders Increasingly Targeting D&Os of Foreign Companies in New York Derivative Actions,” Clyde & Co and client joint publication, September 2021

• Co-author, “Shareholders Increasingly Targeting D&Os of Foreign Companies in New York Derivative Actions,” Clyde & Co and client joint publication, September 2021

• Co-author, "Will Toshiba 'Open the Floodgates' to US Securities Litigation Against Foreign Companies?" Clyde & Co Financial Institutions and D&O International Review, November 2019

• Co-author, "A Rising Tide in Climate Change Litigation; Could a Precedent Setting Ruling Be Coming Soon?" CLM Magazine, February 2019
• Co-author, "Ramirez v. Exxon; The Tip of the Iceberg for Climate Change Disclosure Claims?" PLUS Journal, October 2018
• Co-author, "Litigation Funding; A Global Snapshot," Clyde & Co publication, March 2018
• Co-author, "Recent Decisions Clarify the Reach of US Securities Laws under the Second Prong of Morrison," Clyde & Co International Review, July 2017 
• Featured in “Trump Takes Aim at Class Actions,” Insurance Asia News, March 2017
• Co-author, "Holding the Line: The Application of Professional Services Exclusions in D&O Policies," Insurance Day and Clyde & Co International Review, October 2016
• Quoted in "D&O: How Low Can it Go?" National Underwriter Property & Casualty, September 2016
• "United States FI and D&O Developments: A Snapshot," Clyde & Co International Review, May 2016
• Featured in "US-Listed Companies Under D&O Scrutiny," Insurance Asia News, March 2016
• "The Possession and Control Requirement for Third Party Losses Under Fidelity Bonds," Clyde & Co International Review, September 2015
• "High Frequency Trading - The Threat to Insurers," Reactions Magazine, November 2014
• "Flash Claims: Financial Institutions Targeted for High Frequency Trading," Clyde & Co International Review, September 2014
• "Letter from America - Financial Institutions and D&O Trends in the US.," Mondaq and Clyde & Co International Review, April 2014
• Co-author, "Adjusting to Change: Fidelity Coverage Situations on Both Sides of Merger and Acquisition Transactions," Fidelity Law Association, November 2013