At issue are two competing motions for sanctions. Plaintiff Melissa Selinger filed her amended motion for sanctions against Defendants Kimera Labs, Inc. and Duncan Ross (collectively, “Defendants”) and their counsel on June 4, 2021. [D.E. 59]. Defendants timely responded in opposition [D.E. 74] and Dr. Selinger filed her reply soon thereafter [D.E. 78]. With leave after additional discovery, Dr. Selinger supplemented her motion under seal [D.E. 220] and Defendants timely filed their supplemental response [D.E. 214].

Defendants filed their own cross-motion for sanctions against Dr. Selinger and her counsel on July 2, 2021. [D.E. 75]. Dr. Selinger timely responded in opposition [D.E. 82] and Defendants then filed their reply [D.E. 83]. Therefore, the motions are now ripe for disposition.

Having reviewed the briefing, the relevant authorities, and the record as a whole, the parties’ motions for sanctions are DENIED.[1] Dr. Selinger is granted leave to renew her motion at a later date, however, for the reasons discussed below. No such leave is granted to Defendants.

Litigation in the United States is expensive. Accordingly, a person's decision to pursue the vindication of their legal rights in our courts may depend more upon whether their claims are economically viable than whether their claims are legally meritorious. After all it is remarkably difficult to be made whole by a defendant who lacks the means to satisfy a judgment.

This fact of life has not been ignored by the Federal Rules of Civil Procedure or the Florida Legislature. Indeed, pursuant to Rule 26, federal litigants are required to disclose the insurance policies that “may be liable” to satisfy a judgment in the action. Fed. R. Civ. P. 26(a)(1)(A)(iv). And, under Florida law, insureds are required to “disclose the name and coverage of each known insurer” within 30 days of receiving a written request from a claimant. Fla. Stat. § 627.4137. Similarly, insurers who “may provide liability insurance coverage to pay all or a portion of any claim which might be made” are also required to provide certain insurance information to claimants, including a copy of the policy at issue, within 30 days of receiving a written request from the claimant or the insured. Id. Hence both federal law, under Rule 26, and Florida law, under section 627.4137, expressly permits a claimant to assess – at an early phase of the litigation process – whether there exists a reliable asset from which the claimant could collect a future judgment debt.

The issue presented in these motions focuses on what sanction should flow from Defendants’ failure to timely disclose its insurance information to Dr. Selinger in violation of these principles. The supporting record shows that on June 4, 2019, Kimera entered into a contract with a third-party benefits company that, among other things, outsourced Kimera's payroll and human resources operations to the benefits company. [D.E. 220-2]. This contract also provided Kimera with an Employment Practices Liability Insurance (“EPLI”) policy. Id.

Were there any confusion regarding what the EPLI policy generally covered, that confusion was apparently resolved two weeks later, on June 18, 2019, when the benefits company visited Kimera's office to give a presentation about the services that it provided under the contract. [D.E. 220-3]. This presentation included a PowerPoint slideshow that, in easy-to-read bullet points, informed Kimera that their EPLI policy provided up to $1,000,000.00 in coverage for claims of sexual harassment, discrimination, wrongful termination, and/or hostile work environment. Id. at 12. At least one member of Kimera's executive team, CTO Alexander Jelinek, attended this presentation. [D.E. 145-1].

This presentation turned out to be quite timely. Two days after the presentation concerning Kimera's EPLI policy, Kimera's co-CEO, Lisa McMillion, sent an email to the benefits company advising that Dr. Selinger had not yet been officially terminated. Id. By that point, there is no dispute that Kimera's management was dissatisfied with her performance, while Dr. Selinger was alleging at least that she had not been properly paid or promoted. Dr. Selinger was also complaining that her duties were being minimized and her work sabotaged. As this conflict heated up, Ms. McMillion communicated her need to speak with someone at the benefits company about Dr. Selinger as soon as possible.[2] Id.

On July 23, 2019, apparently after the relationship with her employer did not resolve itself and she feared she was going to be wrongfully terminated, Dr. Selinger hired attorney Adam Schwartzbaum to represent her with respect to her wrongful termination by Kimera and related causes of action. [D.E. 59-1]. Shortly thereafter, Mr. Schwartzbaum contacted Kimera's counsel, Brian Kern, to discuss a potential resolution of Dr. Selinger's claims. Id. During this conversation, Mr. Schwartzbaum asked whether Defendant had any insurance policies that could potentially compensate Dr. Selinger for her claims. Id.

On August 8, 2019, Mr. Kern informed Mr. Schwartzbaum that there were no applicable insurance policies. Id. That was wrong. On September 24, 2019, Ms. McMillion acknowledged in writing that she knew Kimera had an EPLI policy and, in response to a question posed by Ms. McMillion concerning that policy, the benefits company provided her with a summary of Kimera's EPLI coverage. [D.E. 220-5 at 2-3].

On September 26, 2019, Mr. Schwartzbaum sent Mr. Kern a 25-page demand letter outlining Dr. Selinger's claims against Kimera and demanding that Kimera disclose insurance information pursuant to Section 627.4237 of the Florida Statutes. [D.E. 59-2]. Despite Kimera's statutory obligation to respond to Dr. Selinger's insurance disclosure request within 30 days, Mr. Kern did not respond to the request during his October 15, 2019 conversation with Mr. Schwartzbaum.[3] [D.E. 59-1].

On October 17, 2019, while the EPLI policy was clearly in effect, Kimera terminated Dr. Selinger's employment. Id. Six days later, Peter Mavrick notified Mr. Schwartzbaum that Kimera had retained his firm to review Dr. Selinger's claims and demands. Id. Nevertheless, Kimera still did not respond to Dr. Selinger's statutory request for insurance information within the 30 days prescribed by the statute. Id.

On October 31, 2019, Dr. Selinger filed a charge against Kimera with the United States Equal Employment Opportunity Commission (“EEOC”). Id. Thereafter, in July 2020, Mr. Schwartzbaum informed Mr. Mavrick of Dr. Selinger's intention to seek a Notice of Right to Sue from the EEOC and reiterated his belief that any potential insurance proceeds could be useful to resolve the matter. Id. In response, Mr. Mavrick communicated that there were no applicable insurance policies. Id. Again, at this point there is now no dispute that the EPLI policy was still in place.

On August 12, 2020, Dr. Selinger received a Notice of Right to Sue from the EEOC. Id. On October 16, 2020, Dr. Selinger filed her verified complaint against Defendants in this Court. [D.E. 1]. But by the end of August 2020, the time for submitting a claim under Kimera's EPLI policy expired. [D.E. 74 at 3].

On January 28, 2021, Defendants submitted their Initial Disclosures pursuant to Rule 26 and therein stated that there were no applicable insurance policies. Id. This statement was based on Defendants’ expectation that the claim Kimera made under the EPLI policy in December 2020 would be denied by the insurer as untimely.[4] Id. Defendants’ expectation ultimately proved correct because the EPLI insurer denied Kimera's claim in February 2021 on the grounds that it was submitted after the reporting period had expired. [D.E. 59 at 5]. Nevertheless, through a discovery request, Dr. Selinger learned of Kimera's EPLI policy on April 30, 2021 – 19 months after she submitted her statutory demand for insurance information and eight months after the deadline to submit a claim under the policy. Id.

Based on the foregoing, Dr. Selinger moved for sanctions against Defendants pursuant to the Court's inherent powers and 28 U.S.C § 1927. In response, Defendants moved for sanctions against Dr. Selinger and her counsel pursuant to 28 U.S.C. § 1927 because Defendants insist that Dr. Selinger's motion for sanctions is baseless and, therefore, vexatious.

Federal courts possess an “inherent power,” not conferred by rule or statute, “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962). That authority includes the ability to fashion an appropriate sanction for conduct that abuses the judicial process. See Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). “The key to unlocking a court's inherent power is a finding of bad faith.” Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998).

One permissible sanction is an assessment of attorneys’ fees – an order instructing a party who has acted in bad faith to reimburse legal fees and costs incurred by the other side. See Chambers, 501 U.S. at 45. Such a sanction, when imposed pursuant to civil procedures, must be compensatory rather than punitive in nature. See Mine Workers v. Bagwell, 512 U.S. 821, 826-830 (1994) (distinguishing compensatory from punitive sanctions and specifying the procedures needed to impose each kind). In other words, the fee award may go no further than to redress the wronged party “for losses sustained”; it may not impose an additional amount as punishment for the sanctioned party's misbehavior. See id. at 829 (quoting United States v. Mine Workers, 330 U.S. 258, 304 (1947)). The necessary causal connection is appropriately framed as a but-for test: the complaining party may therefore recover only that portion of its fees that it would not have paid but for the misconduct. See Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1187 (2017).

A federal court also has a statutory basis to impose sanctions for bad faith and vexatious conduct. The Court's authority to issue sanctions under 28 U.S.C. § 1927 is at least as broad as a court's authority to issue sanctions under its inherent powers. See Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1178 n. 6 (11th Cir. 2005). Specifically, section 1927 provides that unreasonable or vexatious conduct may be sanctionable in certain circumstances:

28 U.S.C. § 1927. There are three essential requirements for an award of sanctions under Section 1927:

Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997) (internal quotations omitted). With that framework in mind, the Court will examine the parties’ competing motions for sanctions – starting with Defendant's motion. If Defendants are right, and Dr. Selinger's amended motion for sanctions is frivolous or vexatious, then we need not worry about the remedies requested in that motion and focus only on the fees generated in response. On the other hand, as we discuss in this section, if there is a tangible basis for imposition of sanctions in Dr. Selinger's favor, then we must reject Defendant's motion and instead focus on what remedy is due.

A. Dr. Selinger's motion for sanctions is not “baseless”; Defendants’ motion for sanctions must thus be Denied.

Defendants filed their motion for sanctions in response to Dr. Selinger's motion for sanctions because they believe that Dr. Selinger's motion is baseless and, therefore, vexatious. Accordingly, they ask the Court to sanction Dr. Selinger and her counsel pursuant to Section 1927. But their blusterous defense of the supporting record outlined above is most unpersuasive.

Defendants argue that Dr. Selinger's motion is “baseless” for three primary reasons. First, they argue that Defendants’ pre-lawsuit conduct is not sanctionable, as a matter of law, under the Court's inherent powers or section 1927. Second, they argue that Plaintiff did not suffer any harm or prejudice whatsoever during this lawsuit and, absent any resulting harm, sanctions are not warranted under any authority. And third, they argue that Defendants and their counsel have always acted in good faith during this lawsuit. As to the first and second prongs of this attack, the record squarely supports Dr. Selinger's position. As to the third prong, the Court can make no finding yet as to their good faith or bad faith. The time to do so will follow the disposition of the underlying case if necessary.

First, Defendants correctly note that the Court's inherent power to impose sanctions for bad faith conduct is limited to bad faith conduct that is “part of the litigation process itself.” See Woods v. Barnett Bank of Ft. Lauderdale, 765 F.2d 1004, 1014 (11th Cir. 1985). But Defendants mistakenly attempt to twist that language from Woods into a bright-line rule that would preclude the Court from imposing sanctions for any conduct that occurred prior to the initiation of this lawsuit.

Although a lawsuit begins with the filing of the complaint, the “litigation process” may begin long before that. For example, in Title VII cases such as this one, a plaintiff must file a charge with the EEOC before filing a lawsuit in federal court; satisfying this condition precedent is undoubtedly something a plaintiff accomplishes during the “litigation process” because Title VII cases cannot begin in federal court. See, e.g., Khair-Dorsey v. WellSpan Health, Case No. 16-cv-1084, 2017 WL 770590, at *1 (M.D. Pa. Feb. 28, 2017) (“Khair-Dorsey began the litigation process ... by filing an administrative charge against WellSpan with the [EEOC.]”); Scottsdale Ins. Co. v. City of Joliet, Case No. 94-c-1814, 1994 WL 710749 (N.D. Ill. Dec. 20, 1994) (“[T]he EEOC charge is merely one step in the litigation process which ultimately culminates in the filing of a federal lawsuit.”).

The distinction drawn in Woods is not temporal. By limiting sanctionable conduct to that which occurs during the “litigation process,” the Eleventh Circuit in Woods drew a substantive distinction between conduct that is at the heart of the underlying dispute and conduct that occurs while litigating the dispute. See, e.g., Weathertrol Maint. Corp. v. Nova Casualty Co., Case No. 05-cv-21345, 2007 WL 566293 (S.D. Fla. Feb. 20, 2007) (“[A] court cannot award attorney's fees under the bad faith exception to the American Rule where a party is relying solely on prelitigation conduct underlying the alleged wrong at issue in the litigation. In other words, the American Rule cannot be set aside merely because a case involves a ‘bad faith’ breach of contract or a ‘bad faith’ securities fraud.”). Accordingly, Defendants’ first argument fails because the alleged bad faith conduct occurred during the litigation process and when this federal litigation was reasonably foreseeable. Bad faith conduct that took place during this period is, therefore, sanctionable. Thus, Dr. Selinger's motion was neither baseless nor vexatious in this respect.

Though admittedly the particular type of misconduct alleged here has not been the subject of much litigation (to wit, statutory violation of a duty to disclose possible insurance coverage), it is quite similar to established principles involving spoliation or similar acts of obstruction of justice. The Eleventh Circuit, for instance, has repeatedly followed the principle that the duty to preserve relevant evidence arises when litigation is “pending or reasonably foreseeable” at the time of the alleged spoliation. Alabama Aircraft Indus., Inc. v. Boeing Co., No. 20-11141, 2022 WL 433457, at *14 (11th Cir. Feb. 14, 2022) (citing Oil Equip. Co. v. Mod. Welding Co., 661 F. App'x 646, 652 (11th Cir. 2016); Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009)). And applying that principle, our Circuit has affirmed imposition of bad faith sanctions for destruction of evidence that took place before litigation actually ensued. See, e.g., Alabama Aircraft, 2022 WL 433457, at *14-16 (affirming sanction for pre-litigation bad faith conduct in the form of adverse jury instruction) (no error in finding that duty to preserve for anticipated litigation arose when “Nearly a year before [Boeing] deleted the ESI in August of 2006, Boeing assessed internally that it could ‘expect an ugly, lengthy legal battle’ if it terminated its arrangement with [plaintiff]”); Oil Equip., 661 F. App'x at 657 (affirming finding of bad faith pre-litigation conduct when evidence manipulated and tested before the lawsuit filed but after defendant received demand letter through counsel and employees discussed the possibility of litigation).

The Eleventh Circuit is by no means alone in finding that pre-lawsuit conduct that takes place during the litigation process (or in anticipation of litigation) may be grounds for sanctions under a court's inherent power. See, e.g., Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (“The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”) (citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)); John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008) (“[I]t is beyond question that a party to civil litigation has a duty to preserve relevant information ... when that party has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation.”) (alteration in original) (internal quotation marks omitted).

Ultimately, this and other similar lines of cases upholding the exercise of inherent power authority even for pre-litigation conduct derives its authority on a court's predominant responsibility of protecting the judicial process. And as a court sitting in diversity, that duty extends to enforcing Florida law that regulates the judicial process in the state. Section 627.4137 reflects a policy judgment in Florida that persons or entities that purchase insurance have a statutory duty to inform potential claimants of the existence of that insurance. If, as demonstrated here, that duty is violated – repeatedly – in an apparent attempt to undermine a claimant's ability to seek relief, then the judicial process suffers. A court's inherent power, therefore, is quite properly applied to remedy that violation, at least in cases where bad faith is found. So, a prima facie case for inherent power sanctions has been fully established in this record. Defendants unpersuasively contend otherwise. This entire matter is neither baseless nor frivolous; Defendants’ cross-motion for sanctions, on the other hand, is quite meritless.

Defendants’ second argument fares no better. As discussed above, Dr. Selinger has been prejudiced by Defendants’ failure to timely respond to her statutory demand for insurance information. At a minimum, she has incurred attorneys’ fees and other costs tied to the discovery of Kimera's EPLI policy that she would not have incurred but for Defendants’ failure to timely disclose the relevant information. But more substantively, there may have to be compensatory measures to remedy the full extent of the injury. The Court's forthcoming decision to reserve final judgment on this issue until the full extent of Dr. Selinger's harm can be realized does not discount the fact that Dr. Selinger has already been prejudiced in a tangible way. Therefore, Dr. Selinger's motion was neither baseless nor vexatious in this respect either.

Finally, although the Court is not making a finding of bad faith at this time, it is also not making a finding that Defendants have acted in good faith since Dr. Selinger's statutory demand for insurance information. Indeed, Dr. Selinger has submitted strong, unrebutted evidence of bad faith to support her motion for sanctions. Nevertheless, Defendants argue that imposing sanctions against them would be inappropriate here because they have always acted in good faith during this lawsuit. But this Court is not so sure. At the appropriate time, an evidentiary hearing may be conducted at which the principal players will have to testify under oath to explain why they should not be personally sanctioned and/or why Defendants should not have to compensate for any bad faith conduct that is revealed at that hearing. We need not make a final ruling on this record to that effect, however, to find that Defendants’ motion is itself baseless.

Finally, Defendants suggest that a finding of bad faith would be illogical because there is “no underlying incentive or advantage” that Defendants could gain from withholding an insurance policy. Perhaps. The hearing will illuminate that issue. But again, litigation in the Untied States is expensive and it is remarkably difficult to be made whole by a defendant who lacks the means to satisfy a judgment. So, there may be an incentive for a defendant to withhold insurance information; perhaps that is why Florida passed a law requiring such information to be disclosed in a timely fashion.

For these reasons, Defendants’ motion is Denied as meritless.

B. Dr. Selinger's motion presents a prima facie basis to find that sanctions are warranted, but a remedy is premature.

Irrespective of whether Dr. Selinger asks the Court to impose sanctions pursuant to its inherent powers or under section 1927, any sanction must be designed to compensate her for the harm that flowed from Defendants’ failure to timely respond to Dr. Selinger's statutory demand for insurance information. See Mine Workers, 512 U.S. at 829. Put differently, the Court should know the full extent of the harm before it attempts to craft a remedy in the form of a sanction.

Though we have given this much thought, the Court ultimately finds that it is impossible to assess the full extent of Dr. Selinger's prejudice because she is not yet – and may never be – a creditor unable to collect a judgment debt. Assuming, without deciding, that Defendants have acted in bad faith, one measure of the harm caused by Defendants’ misconduct could be the sum of attorneys’ fees and costs incurred by Dr. Selinger through her efforts to uncover Kimera's EPLI policy and to understand why she wasn't informed of its existence in a timely fashion. But, on a theoretical level, the harm to Dr. Selinger may be much greater than some unnecessary litigation costs: she could ultimately obtain a judgment against Defendants only to realize that they lack sufficient assets to pay the judgment debt when it comes due.

Dr. Selinger's fear of non-recovery is not baseless. Indeed, Defendants have described Kimera in their briefing as a relatively new “start-up” company. And Dr. Selinger has highlighted the fact that Kimera is currently being sued by other plaintiffs in other fora. Accordingly, Dr. Selinger believes herself to be in a “race to judgment” against these other plaintiffs because they, like her, seek to recover substantial sums of money from Kimera – a “start-up” company that may be experiencing financial difficulties apart from its legal troubles.

Although this fear helps explain why Dr. Selinger's preferred sanction involves the entry of a default judgment against Defendants, the Court is not persuaded that such a drastic remedy is appropriate in this situation given that that Court's inherent powers “must be exercised with restraint.” See Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017). Accordingly, the better reasoned approach, in the Court's view, is to let this case be resolved on the merits and thereafter permit Dr. Selinger to renew her motion for sanctions when she can articulate the full extent of the harm caused by Defendants’ failure to timely disclose the EPLI policy.

For instance, that remedy may involve joining individuals who materially engaged in the bad faith conduct at issue as judgment defendants/debtors, at least to the extent of the available policy limits that may have satisfied any judgment. Or perhaps the proper remedy as a court sitting in equity is, at least, recovery from those individuals for the attorneys’ fees incurred in the action as opposed to the amount of the judgment. Both measures would appear to be consistent with the principle that a court's inherent power should be exercised with restraint, but at the same time with the purpose of fashioning “an appropriate sanction for conduct which abuses the judicial process.” Barnes, 158 F.3d at 1215 (quoting Chambers, 501 U.S. at 44-45 (internal citation omitted) (emphasis in original).

At the same, we also find it readily clear that the exercise of that limited power would preclude the relief demanded in Dr. Selinger's motion – default judgment. The issue of insurance coverage does not relate to the underlying liability issue, in contrast to a spoliation sanction that does. The statutory duty here that may have been breached, in bad faith, relates to the recovery of the extent of damages proven at trial. It also relates, in principle, to the ability to timely settle the case before trial given that insurance coverage makes that more likely (in most instances). Neither policy interest, however, requires entry of judgment against the wrongdoer when a finding of liability has never been made. So, a default judgment is imposing a draconian square remedy into a limited round hole. For now, a final remedy cannot be imposed until we know the true extent of the injury to Dr. Selinger.

And further support for this conclusion is found in the cases that Dr. Selinger cites in her motion. Almost all of them involved some form of a fee or other monetary sanction when the same misconduct was found to have taken place during the litigation, thereby warranting Rule 37 sanctions. See, e.g., Eshelman v. Puma Biotechnology, Inc., 2019 WL 1779572, at 1 (E.D.N.C. Apr. 23, 2019) (awarding $4,000 as sanctions under Rule 37 for non-disclosure of policy); Hopkins AG Supply LLC v. First Mountain Bancorp, 2017 WL 2937713, at 2 (W.D. Okla. July 10, 2017) (granting limited fees under Rule 37 for non-disclosure of policy prior to settlement talks); Palacino v. Beech Mountain Resport, Inc., 2015 WL 8731779, at 1 (W.D.N.C. Dec. 11, 2015) (awarding a $1,000 sanction for non-disclosure under Rule 37).

Given that inherent power sanctions must be exercised in a more careful fashion, it is hard to see how a draconian remedy is possible when only fees are awarded for similar misconduct during the litigation. And, most notably, Dr. Selinger has cited no case that upheld such a drastic remedy for either pre-litigation or post-litigation non-disclosure. We do not find that our case warrants being the first one. Therefore, the Court Denies Dr. Selinger's motion on procedural ripeness grounds. Dr. Selinger is granted leave, however, to file a second amended motion for sanctions when the prejudice from Defendants’ alleged misconduct can be accurately calculated. In that case, an evidentiary hearing will have to be conducted.

For the foregoing reasons, the parties’ competing motions for sanctions are DENIED. Consistent with the terms of this Order, Dr. Selinger is granted leave to renew her motion for sanctions when the procedural posture of this case permits her to accurately articulate the full extent of the harm caused by Defendants’ failure to timely respond to Dr. Selinger's statutory demand for insurance information.

DONE AND ORDERED in Chambers at Miami, Florida, this 4th day of March, 2022.

On August 16, 2021, the Honorable Darrin P. Gayles referred these motions to the Undersigned Magistrate Judge for disposition. [D.E. 105].

To further that point, Dr. Selinger alleges in her amended complaint that, in May 2019, she “complained to Ms. McMillion in writing concerning the sexual harassment and discrimination she had and was continuing to experience from Dr. Ross and Mr. Jelinek.” [D.E. 95 at ¶ 98]. Kimera disputes this assertion.

Indeed, it appears that Kimera did not provide a written response for more than one year. Mr. Schwartzbaum's declaration states that no written response to Dr. Selinger's request for insurance information was provided until April 30, 2020. [D.E. 59-1 at ¶ 5]. The Court reads this as a typographical error. Elsewhere in Dr. Selinger's briefing, April 30, 2021 is identified as the date of Kimera's first written response, which was included in its response to one of Dr. Selinger's requests for production. [D.E. 59 at 5].

The record indicates that Kimera's decision to submit a claim under the EPLI policy in December 2020 resulted, in part, from Kimera's hiring of a new in-house counsel, Sean Casey. Defendants point to this failure to timely submit a claim as proof that Defendants “first learned” of the EPLI policy in December 2020, [D.E. 74 at 4], but the Court rejects Defendants’ representation in light of the supplemental exhibits filed by Dr. Selinger, [D.E. 220], which indicate that Kimera's executive leadership was aware of the EPLI policy (and its potential implications vis-à-vis Dr. Selinger) as far back as June 2019.