David Greenwald, an accomplished trial attorney, is a partner with Jenner & Block LLC where he is co-chair of the firm’s reinsurance practice. David represents insureds in complex direct coverage matters; cedants and reinsurers in reinsurance disputes; and investors in insurance-linked securities. David is the immediate past chair of the International Bar Association’s insurance committee. David received his law degree from the University of Michigan Law School and his AB from Georgetown University. David is co-author of the comprehensive treatise Testimonial Privileges (West, 2019-2020).
DESCRIBE YOUR CAREER TO DATE.
I have had the good fortune of an incredibly diverse practice. I have tried cases in federal and state courts, arbitrated cases in the US and Europe, and conducted criminal and civil internal investigations on three continents. Throughout my career, insurance and reinsurance disputes have been a core focus of my practice.
WHAT EARLY EXPERIENCE HELPED TO SHAPE YOUR INSURANCE AND REINSURANCE PRACTICE?
An early immersion in the London market had a great influence on my practice. In 1995, London market insurers filed suit against my client in the US seeking to void $120 million in excess workers comp cover placed in the marine market for the notorious 1988-1992 underwriting years. The insurers would not agree to be bound by the testimony of the lead underwriter; indicated that they would offer testimony from dozens of underwriters participating on the slips; but refused to bring the underwriters to the US to be deposed. So the court ordered the insurers to pay our travel and lodging costs to depose them in London. I deposed the lead underwriter in January 1996, at the very beginning of the Equitas era. Over the course of the next seven months, I had the opportunity to interact with some of the legends of the marine market, to watch the old Lloyd’s morph into the Equitas run-off, and to see the new Lloyd’s emerge. I was intrigued by Lloyd’s and the London market and impressed by its resilience. This immersion in the market 25 years ago opened doors to complex insurance and reinsurance matters that have been some of my favourite engagements.
WHAT CHALLENGES DO YOU SEE IN THE INSURANCE-LINKED SECURITIES MARKET?
The ILS market provides an exciting opportunity for financial innovation and convergence between the insurance industry and capital markets, and also presents me with an opportunity to apply my structured finance experience to my reinsurance practice. More than a year before the dotcom crash, I represented the debtor in one of the largest securitisation bankruptcies up to that time. On the way to defeating a bank’s claim to US$56 million in deal proceeds, I learned the strengths and weaknesses of the securitisation model. In the past 10 years, I have advised investors holding impaired cat bonds. When the securitisation model is applied to reinsurance, the reinsurer is “atomised”, creating a gap in knowledge and control between the capital (the bondholders) and the decision-maker (the SPV and its agents). The deal documents make it very difficult for bondholders to obtain more than scant information regarding claims development. As the ILS market matures, and the secondary market becomes more active, it will be important to provide more transparency to investors regarding the development of and the basis for claims that may impair their bonds.
WHAT ARE THE HIGHLIGHTS OF YOUR TENURE AS CHAIR OF THE IBA INSURANCE COMMITTEE?
I was fortunate to be an officer of the IBA insurance committee for more than 10 years, culminating in two years as chair. There are two accomplishments while I was chair that stand out for me. First, we significantly increased the diversity of committee leadership to make it more representative of the membership of the committee and of the insurance industry more broadly. Second, after several years of planning, we launched a stand-alone specialist insurance conference in London that is now held annually in the first week of March. Attracting the highest-profile speakers from the market and government, and practitioners of all backgrounds – disputes, transactional and regulatory – from around the world, it is becoming a “must attend” event for insurance lawyers with international practices.
WHAT APPROACHES DO YOU TAKE TO MAXIMISE VALUE FOR YOUR CLIENTS?
I strive to achieve my clients’ goals, in adversarial proceedings or during negotiations, with common sense strategies aimed at minimising unnecessary expense and disruption for the client while providing the highest level of advocacy, advice and service. Dispute resolution, whether litigation or arbitration, is expensive. The explosion of electronic data coupled with the unnecessary bravado of counsel and a lack of common sense can derail the ability to get to the merits of a dispute and multiply costs, typically reducing the value of the ultimate resolution of the matter for all parties. At the outset of many matters, I tell opposing counsel that we can approach the matter the easy way or the hard way, but that they should not mistake courtesy for weakness. I derive great satisfaction from matters where the parties fight hard, but fair, and keep the focus on maximising value for their clients.
WHAT IS THE BEST PIECE OF CAREER ADVICE YOU HAVE EVER RECEIVED?
Your reputation is your most valuable asset. Do not cut ethical corners. Ever. That path is slippery and steep.
WHAT IS YOUR PROUDEST ACHIEVEMENT TO DATE?
My proudest achievement as a lawyer comes from my pro bono practice. I represented a client on death row for more than 10 years, ultimately resulting in the governor of Illinois commuting his sentence to life. My client went from spending 23 hours a day in a 9-by-12 cell to living among the general prison population without fear of execution.