Harvard Will Have to Pay Some Litigation Costs in SCOTUS Litigation

Last month, the U.S. Supreme Court heard arguments in two consolidated landmark affirmative action cases, styled Students for Fair Admissions Inc. v. President and Fellows of Harvard College.  One of the cases, as the name of the case suggests, involves a challenge to the admissions policies at Harvard College.

Harvard duly notified its primary insurer that it would incur legal expenses in connection with the pending litigation, but it did not provide formal notice to its supplemental insurer until long after it policy had lapsed.  The primary insurer provided coverage up to $25 million.  The supplemental insurer refused coverage due to late notice.

In President and Fellows of Harvard College v. Zurich American Insurance Company, a federal district court sided with the insurer, Zurich.  Harvard’s policy with Zurich obligated Harvard to provide notice of claims within 90 days of the expiration of the policy.  The policy in question expired on November 1, 2016, but Harvard did not provide notice until May 23, 2017.  Harvard argued that Zurich was on constructive notice of the claim, as it had been informally made aware of the litigation, but Massachusetts law recognizes neither actual knowledge nor constructive knowledge exceptions to the formal notice requirements of insurance contracts.  

Adam Liptak reports in The New York Times that Harvard’s expenses in the litigation had exceeded $27 million.  Ouch.