Harvard Will Have to Cover Own Legal Fees From Anti-Affirmative Action Case, First Circuit Rules

A month after the Supreme Court ruled against Harvard and effectively struck down affirmative action in higher education admissions, the University was dealt another legal blow — this time, to its pocketbook.

Zurich American Insurance Company, Harvard’s secondary insurance provider, will not be responsible for up to $15 million of the school’s legal fees in the high-profile anti-affirmative action lawsuit brought by Students for Fair Admissions, the First Circuit Court of Appeals ruled Wednesday.

“The parties do not dispute that Harvard purchased a claims-made policy from Zurich. Nor do they dispute that Harvard failed to provide Zurich with written notice until May of 2017 — long after the deadline stipulated in the policy had passed. Consequently, Zurich had every right to deny coverage based on a lack of timely notice,” Circuit Judge Bruce M. Selya ’55 wrote on Wednesday.

The appellate ruling upheld a lower court decision by District Judge Allison D. Burroughs last November that the University’s failure to give Zurich official notice of a claim within the insurance policy’s deadline bars the University from accessing its coverage.

In legal filings, Zurich argued that its policy — worth up to $15 million — would only kick in if Harvard notified the firm within 90 days of exhausting its $25 million primary insurance policy with American Insurance Group. But the University didn’t provide notice to Zurich until May 2017 — more than a year after that deadline.

Harvard spokesperson Jason A. Newton declined to comment on the case or the ruling.

In Harvard’s suit against Zurich, the University argued that the secondary insurance provider “had knowledge of” the lawsuit due to “widespread media coverage” of the case.

“Upon information and belief, Zurich had knowledge of the SFFA Action by late 2014 or early 2015, and no later than January 30, 2016,” Harvard’s preliminary statement reads, citing nine different national news outlets covering the case.

But during a hearing at the John Joseph Moakley U.S. Courthouse in June, a panel of three federal judges appeared skeptical of the University’s claim.

Zurich attorney Andrew L. Margulis declined to comment on the litigation.

Harvard first sued Zurich on Sept. 17, 2021, after it refused to cover costs incurred from a 2017 Department of Justice investigation into the University’s admissions process and the anti-affirmative action case.

Barring yet another appeal, Harvard will have to pay the legal fees it incurred over nine years of litigation.

—Staff writer Michelle N. Amponsah can be reached at michelle.amponsah@thecrimson.com. Follow her on Twitter @mnamponsah.