Similar to previous statutory “bailout” programs, the CARES Act specifies significant government oversight to track and investigate the use of disbursement. For example, the Justice Department will oversee disbursements under the CARES Act through its powers under the False Claims Act. Attorneys at White & Williams anticipate an uptick in government enforcement activity under the FCA, which is likely to, in turn, result in a considerable amount of claims under D&O insurance policies. They provide their thoughts on coverage issues that insurers and policyholders should consider as such claims are made, such as:
- Does an FCA subpoena constitute a “claim”?
- Is an FCA award a covered “loss”?
- Are whistleblower claims covered?
- Are FCA retaliation claims related to FCA whistleblower claims?
- Are there other applicable policy considerations?
