THOMPSON, Circuit Judge.
In today's case (more procedurally complicated than substantively complex), a district judge issued an order requiring Chartis Insurance Company to advance defense costs to former directors and officers of Westernbank of Puerto Rico, who find themselves in the cross-hairs of the Federal Deposit Insurance Corporation ("FDIC," for easy reading).
Westernbank's run as one of Puerto Rico's leading banks came to an end in the late 2000s when local regulators ordered it closed and appointed a federal regulator — the FDIC — receiver. Jumping in with gusto, the FDIC investigated what had gone on there. And it did not like what it found. Certain bank directors and officers had breached their "fiduciary duty" by jeopardizing the bank's financial soundness, the FDIC claimed in a letter sent to (among others) the directors and officers and their insurer, Chartis. Concluding that these breaches had caused more than $367 million in losses to the bank, the FDIC demanded that the directors and officers pay that amount.
Without missing a beat, the directors and officers notified Chartis of the FDIC's multimillion-dollar claim. And, naturally, they asked Chartis to confirm coverage under a directors' and officers' liability-insurance policy issued by Chartis to Westernbank's owner, W Holding Company, Inc. Known in the insurance world as a "D & O" policy, this particular policy declares (in capital letters) that Chartis "must advance defense costs, excess of the applicable retention, pursuant to the terms herein prior to the final disposition of a claim." The policy's advancement provision (emphasis ours) repeats further on that Chartis "shall advance, excess of any applicable retention amount, covered Defense Costs." "Defense Costs" include "reasonable and necessary fees, costs and expenses consented to by the Insurer." The policy says, too, that Chartis shall pay for certain "Loss[es] of an Organization arising from a Claim made against an Insured Person for any Wrongful Act of such Insured Person." "Loss[es]" include defense costs. "Organization" includes the "Named Entity," which is W Holding, plus its "Subsidiar[ies]," which include Westernbank. And "Insured Person[s]" include directors and officers.
Chartis denied coverage five months later, relying (most pertinently) on the policy's "insured versus insured" exclusion. A standard proviso in D & O policies, this exclusion says that Chartis
"Claim," the policy adds, includes "a written demand" for money. "Insured" means "Insured Person" or "Organization." And, again, the directors and officers come within the policy's definition of "Insured Person[s]," while W Holding and Westernbank fall within the policy's definition of "Organization." Also, the policy neither mentions the FDIC nor bars coverage for suits by FDIC-type regulators like some policies do.
Convinced that the FDIC, "[a]s receiver," had stepped squarely into Westernbank's
The FDIC then promptly removed the entire case to federal court. See 12 U.S.C. § 1819(b)(2)(B). It amended its complaint to bring more directors and officers (as well as their spouses and conjugal partners) into the case and to add cross claims against them, too. This pleading sounded a familiar theme: that the FDIC had sued in its capacity as Westernbank's receiver and that the directors and officers had breached their fiduciary duties, resulting in the bank's loss of over $176 million. But the FDIC also estimated there that the bank's closing could result in the federal deposit-insurance fund's losing over $4 billion.
Chartis fired back with a motion to dismiss all claims brought against it by the directors and officers and by the FDIC. See Fed.R.Civ.P. 12(b)(6). What matters for our purposes is that Chartis asserted again that because the FDIC was pursuing the directors and officers "on behalf of or in the right of" Westernbank, there is no coverage under the insured-versus-insured exclusion and so their coverage claim should be jettisoned. The directors and officers opposed the dismissal motion, arguing (at the risk of oversimplification) that a clear "majority of courts" refuse to stretch the insured-versus-insured exclusion "to include the FDIC."
Believing that there is at least a "remote possibility" of coverage, the directors and officers also moved the judge to order Chartis to advance their defense costs.
The FDIC chimed in, moving without opposition for leave to file a second amended complaint in intervention, see Fed. R.Civ.P. 15(a) — a motion the judge granted. As best we can tell, the big difference between the first and second amended complaints is the latter's saying that the FDIC, as receiver,
As support for its claim, the FDIC cited 12 U.S.C. § 1821(d)(2)(A)(i). That provision — one of many in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA," for now on)
Not surprisingly, the directors and officers and Chartis responded by filing separate motions to dismiss the FDIC's second amended complaint. See Fed.R.Civ.P. 12(b)(6). Among other arguments, the directors and officers claimed that they had not acted in a grossly negligent fashion. Chartis, on the other hand, raised the same insured-versus-insured argument as before. Also not surprisingly, the FDIC opposed the dismissal motions. And responding to Chartis's insured-versus-insured theory, the FDIC said that "overwhelming case authority" establishes that this exclusion does "not apply to entities like the FDIC."
Taking up the cost-advancement matter first, the judge granted the directors and officers' motion in an electronic docket entry that said:
The judge denied Chartis's motion to reconsider that order, too. And he then denied all motions to dismiss the FDIC's second amended complaint. As for Chartis's all-encompassing dismissal motion (the only one that matters somewhat here, because it touched on the insured-versus-insured issue), the judge said that the insured-versus-insured exclusion barred the FDIC from suing on behalf of Westernbank's members, officers, and directors, plus also Westernbank's shareholders (consisting only of W Holding, a party to the case). But because the FDIC also sued on behalf of account holders, depositors, and the drawn-down FDIC-insurance fund, the judge concluded that the FDIC's claims fell outside the insured-versus-insured exclusion.
Which brings us at last to Chartis's appeal of the cost-advancement order — an appeal that pivots around two basic questions: Do we have jurisdiction to hear the parties? And, if so, did the judge bungle the cost-advancement ruling? We answer "yes" to the first question and "no" to the second, for the reasons we now explain.
The directors and officers think we have no authority over this matter because, they say, the cost-advancement edict is not an appealable order, given that there is no final judgment disposing of all claims against all parties. Like Chartis, we think the opposite is true.
Normally, only final judgments are appealable. See Morales Feliciano v. Rullán, 303 F.3d 1, 6 (1st Cir.2002) (citing 28 U.S.C. § 1291). An exception exists, however, for orders granting injunctions. See 28 U.S.C. § 1292(a)(1).
So, in other words, we have jurisdiction. To the merits, then.
Both sides bombard us with arguments. But before entering the fray, we pause to highlight some important legal principles.
Whether a mandatory preliminary injunction should issue typically depends on the exigencies of the situation, taking into account four familiar factors: the moving party's likelihood of success on the merits, the possibility of irreparable harm absent an injunction, the balance of equities, and the impact (if any) of the injunction on the public interest. See, e.g., Braintree Labs., Inc., 622 F.3d at 40-41. These factors are not all weighted equally, however. See, e.g., Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir.1996). Truth be told, "[l]ikelihood of success is the main bearing wall" of this "framework." Id.; accord Corporate Techs., Inc. v. Harnett, 731 F.3d 6, 10 (1st Cir.2013). When it comes to the merits, Chartis stakes everything on persuading us that the directors and officers are not likely to succeed on their coverage claim and so should not get cost advancements. Given this development, we need not concern ourselves with the other elements of the four-part test. See, e.g., Corporate Techs., Inc., 731 F.3d at 10-13 (taking a similar tack in a similar situation); Ross-Simons of Warwick, Inc., 102 F.3d at 16 (ditto).
As for our standard of review, the Federal Reporter is chock full of cases saying how we scan preliminary-injunction decisions for "abuse of discretion." See, e.g., Diálogo v. Santiago-Bauzá, 425 F.3d 1, 3 (1st Cir.2005); Langlois v. Abington Housing Auth., 207 F.3d 43, 47 (1st Cir. 2000); Ocean Spray Cranberries, Inc. v. Pepsico, Inc., 160 F.3d 58, 61 & n. 1 (1st Cir.1998). But the standard depends on the issue under review, obviously. See,
Puerto Rico law holds that an insurance company must advance defense costs if a complaint against an insured alleges claims that create even a "remote possibility" of coverage. See Cuadrado Rodríguez v. Fernández Rodríguez, No. KLCE200601588, 2007 WL 1577940, at *5 (TCA Mar. 30, 2007) (certified translation provided by the parties).
Looking at the cost-advancement issue through the prism of preliminary-injunction principles makes an already insured-friendly situation under Puerto Rico law friendlier still. At this stage, you see, the directors and officers need not show a "certainty" of a "remote possibility" of coverage. On the contrary, only a "likelihood" of a "remote possibility" of coverage is required. Cf. generally Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991) (talking in terms of "probability of success" (emphasis added)).
Chartis pins its reversal hopes on the strength of the following six-step argument (which is basically a reprise of its position in the district court). Step one: The policy only obliges Chartis to advance the costs of defending against "covered" claims. Step two: The policy's insured-versus-insured exclusion blocks coverage for claims "brought ... on behalf of or in the right of" Westernbank. Step three: There would be no coverage if Westernbank had sued its directors and officers
Chartis's theory has a certain appeal, at least at first glance. But it is not persuasive, for the simplest of reasons: It gives lip service — and no more — to the words "remote possibility" in the pertinent phrase "remote possibility of coverage." And it ignores that the procedural posture of the case only requires a mere likelihood of a remote possibility of coverage to jump-start the cost-advancement duty. Viewed in the proper light, the flaws in Chartis's thesis stand out in bold relief.
Let's zero in on step four of Chartis's six-step argument: that the FDIC is only suing on behalf of or in the right of Westernbank — that it simply donned the bank's wingtips, if you will. Quoting from the FDIC's second amended complaint, Chartis writes that the FDIC alleges that it, "as Receiver of Westernbank," seeks millions in "damages caused by the gross negligence" of the bank's former directors and officers. But remember, the FDIC did more than allege that it had succeeded to Westernbank's rights. It also alleged that it had succeeded to the rights of Westernbank's depositors and account holders — rights that included the right to "bring this action." And it alleged, too, that it was suing to recover money the FDIC-insurance fund had shelled out after the bank had shut down. Eyeing that pleading liberally, see Triple-S Mgmt. Corp., 2009 WL 2419937, at *13, while knowing also that pleading perfection is not required, see Cuadrado Rodríguez, 2007 WL 1577940, at *6, we think that these allegations make it likely possible — even if only remotely so — that the FDIC is suing on these non-insureds' behalf.
Relatedly, Chartis argues — a unique argument, to say the least — that what role the FDIC has assumed is set when it makes its first claim. And, Chartis writes, the FDIC did not say in its demand letter to the directors and officers that it is pursuing claims on behalf of or in the interest of Westernbank's depositors and account holders or the FDIC's run-down insurance fund. But Chartis cites no cases holding that the FDIC must disclose its representative capacities and interests in any demand dispatch. Ultimately, nothing Chartis advances on this front shows there is no likelihood of even the remotest possibility that the FDIC sued on behalf of non-insureds. Enough said on that.
Ever persistent, both sides continue battling over the remote-possibility-of-coverage question, citing a corps of cases to support their competing positions on the effect an insured-versus-insured exclusion has in circumstances like the present. None binds us, however — on that everyone agrees.
Chartis, for example, musters decisions involving the FDIC and bank directors and officers where, it says, courts did apply the insured-versus-insured exclusion.
Wait a minute, our directors and officers respond, in those cases — unlike this one — the FDIC either did not sue any bank directors or officers or chose not to assert any claims on behalf of non-insureds. And going on the offensive, they then march out cases that, they say, hold the insured-versus-insured exclusion inapplicable when the FDIC (acting as a defunct bank's receiver) sues as a creditor itself, on behalf of other creditors, or as a subrogee to the rights of the depositors.
Not to be outdone, Chartis snipes at the directors and officers' cases. Some are too "conclusory" to be helpful, Chartis proclaims. Others, it adds, involve policies containing insured-versus-insured exclusions significantly different from the one here.
What we have is a classic battle of dueling caselaw. But such a state of affairs hurts Chartis. With no controlling authority on whether an insured-versus-insured exclusion applies to the FDIC in a situation like ours; with non-binding cases pointing in different directions; and with our obligation to resolve any doubts in the insured's favor, see Pagán Caraballo, 22 P.R. Offic. Trans. at 103 — Chartis's suggestion that there is zero likelihood of a remote possibility of coverage falls flat. Keep in mind (and we cannot stress this enough): likelihood — not certainty — is the name of the game, and possibility — not actuality or probability — suffices, no matter how remote that possibility is. And that standard is met here. So the judge's cost-advancement edict stands. But we add — lest anyone be confused — that having lost the likelihood-of-success skirmish, Chartis may still "win" the coverage "war at a succeeding trial on the merits." See Narragansett Indian Tribe, 934 F.2d at 6; see also Univ. of Texas v. Camenisch, 451 U.S. 390, 394, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (cautioning that one should not "equate[] `likelihood of success' with `success'").
For the reasons cast above, we affirm the challenged order. Also, we award the directors and officers their costs on appeal. See Fed. R.App. P. 39(a)(2).
So Ordered.