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Wiley Rein's Charles C. Lemley, representing XL Specialty Insurance Company, said: "The reason they didn't hesitate is because this happens frequently: securities class actions are filed, then there's an opt-out, then there's a tagalong, and they're always treated as a single claim, absent some really extraordinary circumstances." (Credit: Said M/Shutterstock.com) Wiley Rein’s Charles C. Lemley, representing XL Specialty Insurance Company, said: “The reason they didn’t hesitate is because this happens frequently: securities class actions are filed, then there’s an opt-out, then there’s a tagalong, and they’re always treated as a single claim, absent some really extraordinary circumstances.” (Credit: Said M/Shutterstock.com)

In a virtual argument before the Delaware Supreme Court, counsel for Arizona-based solar power component manufacturer and services provider First Solar Inc. said two insurance companies should be required to pay for the defense of two federal securities suits because each case dealt with a different element of First Solar’s business and a different set of allegedly false and misleading statements.

“What’s critical is that the language of the policy is overbroad, by definition. It not only says ‘the same or related’ wrongful acts — it would bar (coverage) if there is any fact in common alleged in any of the prior litigations,” said Adam Ziffer of Cohen Ziffer Frenchman & McKenna. “So we are faced with the task of discerning from this language what claims are sufficiently related that they should be barred.”

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