D&O Liability Insurance Policies in 2014
Overview:On October 10, 2013, the Federal Deposit Insurance Corporation (FDIC) issued Financial Institution Letter 47-2013 to warn insured depository institutions of two areas of concern for director and officer insurance policies namely: (1) FDIC’s noted increase in exclusionary terms or provisions contained in institutions’ D&O insurance policies “that may adversely affect the recruitment and retention of well-qualified individuals and (2) FDIC insurance coverage for civil money penalties (“CMPs”). Companies must evaluate their insurance policies to ensure that they do leave their directors and highest executives unduly exposed to personal liability for litigation costs, damages, and penalties.
The Knowledge Group has assembled a panel of key thought leaders to provide the audience with an in-depth analysis of the D&O Liability Insurance Policies. In a two-hour live webcast, speakers will discuss:
- D&O Liability Insurance Policies: An Overview
- Enforcement of and Compliance with D&O Liability Insurance Policies
- What Changes in Wordings Are Available to Best Protect Directors and Executives?
- How should coverage programs be structured to protect the D’s and O’s?
- How should the relationship with insurers be managed including selecting which lawyer will defend the directors?
- How do you settle with claimants or other insurers without imperiling other insurance recoveries?
- Penalties and Exemptions Imposed by Regulators on indemnification and insurance
- Best Practices in Compliance
- Up to the minute regulatory changes
Peter D. Luneau, counsel, Skadden Arps
- Recent changes in the SEC’s enforcement policies require renewed attention on D&O insurance terms.
- After years of not requiring admissions of wrongdoing, the SEC will no longer permit “no admit, no deny” settlements in certain cases involving egregious misconduct.
- This policy shift may have implications for several provisions in D&O insurance policies, including, most notably, “conduct exclusions” (e.g., exclusions for deliberate fraudulent or criminal conduct) and provisions concerning the recoupment of defense costs.
- For instance, insurers may argue that admissions of wrongdoing in an SEC settlement are sufficient to trigger a “conduct exclusion” and therefore bar coverage in a civil case arising from the same set of facts.
- In light of the foregoing, insurers need to pay particular attention to the wording of these exclusions when securing coverage and when negotiating settlement terms with the SEC
Marc S. Mayerson, Principal, The Mayerson Firm PLLC
- Effectively managing tender to corporation for indemnification and notice to insurance company
- Ensuring recovery of defense costs for law-enforcement or regulatory subpoenas and investigations.
- State-of-the-art structure of D&O coverage programs: “A,B,C” coverage, and Side-A Excess DIC.
- Control and selection of defense counsel.
- Negotiating the policy language to establish most favorable forum for determining whether “dishonest acts/willful violations” or unfair “profit/advantage” took place.
- The impact of broadening the scope of coverage for investigations: dilution of remaining coverage for “innocent” directors and officers?
Robert H. Shulman, Partner, Manatt, Phelps & Phillips, LLP
- Costs relating to regulatory investigations – What a typical D&O policy may (and may not) cover
- Discussion of potential costs including fees/commissions, penalties and fines, defense costs and independent consultant costs
- When state regulators piggy-back on federal investigations
- The contractual liability exclusion common in D&O policies
- Typical policy language
- Recent cases are split on its application
- Discussion of cases precluding coverage
- Discussion of cases granting coverage notwithstanding this defense
- The “insured v. insured exclusion” in D&O policies
- What it is
- Typical contexts: (1) FDIC receiver claims; and (2)bankruptcy claims
- Discussion of recent cases in both contexts
David Souders, Property and Casualty Insurance Broker, Todd Associates
- Privacy Liability Claims vs. D&O Coverage
- Recent cases
- How D&O may or may not apply
- Coordination of D&O and Privacy Liability Coverage
- When And How An Insurance Carrier May Need To Be Notified
- Examples of claim denials
- Policy features you must review
- Coverage negotiations
- Internal processes and procedures
- Coverage Modifications You Want Vs. What An Underwriter Will Give
Who Should Attend:
- Attorneys & Senior Executives from Banks and Financial Institutions
- CFOs and the Finance Team from Banks * Financial Institutions
- Banking & Finance Attorneys
- Other related professionals
Peter D. Luneau represents clients in a variety of complex insurance coverage and product liability matters. His representation of clients covers a wide range of insurance coverage disputes, including, for example, multiparty litigation in state and federal courts concerning environmental, property and business interruption losses, and numerous U.S. and international insurance and reinsurance arbitrations and alternative dispute resolutions.
Mr. Luneau was a lead member of the team that represented the Port Authority of New York and New Jersey with respect to all of its property insurance claims arising out of the September 11 terrorists attacks, as well as the owner of an adjacent landmark building in connection with its September 11 losses. His arbitration experience includes the representation of one of the world’s largest banks in an international arbitration involving political risk insurance and reinsurance; an international energy provider in connection with nuclear fuel rod losses; a transportation insurer in a reinsurance dispute concerning claims handling; and a leading life insurance company against its reinsurer.
Peter D. Luneau represents clients in a variety of complex insurance coverage and product liability matters. His representation of clients …
Marc Mayerson represents corporations, board members, executives, and fiduciaries concerning insurance recovery under D&O, ERISA Fiduciary, Fidelity, and other types of insurance policies. He led the successful effort to secure coverage for Solyndra’s board and executives, and he has represented financial companies, hedge funds, pharmaceutical, chemical, energy, manufacturing, start-ups, private companies, law firms, trade associations, and nonprofits on coverage matters, including reviewing wordings of proposed policies and advising on insurance issues for boards and companies in corporate transactions. He teaches insurance law at both Georgetown and George Washington Universities’ law schools, is a commercial arbitrator and mediator, co-edits New Appleman Insurance Practice Guide, and is widely recognized in worldwide guides to leading business and insurance lawyers. A graduate of the University of Michigan and Harvard Law School (magna cum laude and a member of the Harvard Law Review), Mayerson has specialized in representing policyholders for nearly thirty years. He is the principal of The Mayerson Firm PLLC in Washington, DC.
Marc Mayerson represents corporations, board members, executives, and fiduciaries concerning insurance recovery under D&O, ERISA Fiduciary, Fidelity, and other types …
Robert Shulman is a partner in Manatt, Phelps & Phillips’ Washington, D.C. office, specializing in insurance recovery. He litigates complex disputes with insurance companies on behalf of corporations seeking coverage for claims involving environmental issues, products, construction, directors and officers, asbestos, and other large-scale torts. Robert also handles insurance claims related to securities, natural disasters, and business interruption losses. In addition to his insurance recovery practice, Robert is experienced in class action litigation, including opposing certification as well as the development and implementation of both certification and the merits. His experience spans state and federal courts throughout the United States and adjudicative bodies in the United Kingdom.
Robert Shulman is a partner in Manatt, Phelps & Phillips’ Washington, D.C. office, specializing in insurance recovery. He litigates complex …
David is a property and casualty insurance broker specializing in the design and brokerage of liability insurance programs for companies with complex and unique exposures. He is an avid writer of risk management whitepapers, client advisories and webinar presentations. David frequently speaks at conferences and seminars throughout the country on issues related to risk management and professional and management liability insurance.
David is a property and casualty insurance broker specializing in the design and brokerage of liability insurance programs for companies …
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The Mayerson Firm PLLC
About Skadden Arps
Serving clients in every major international financial center, Skadden, Arps, Slate, Meagher & Flom LLP and affiliates is one of the leading law firms in the world, with 22 offices and approximately 1,800 attorneys. Skadden diversified practice enables them to offer solutions to the most challenging legal issues in virtually every area of corporate law, providing the specific legal advice clients need to compete most effectively in a global business environment. Skadden represents approximately 50 percent of the Fortune 250 industrial and service corporations, as well as financial and governmental entities; small, entrepreneurial companies; and cultural, educational and charitable institutions, advising on a wide variety of high-profile transactions, regulatory matters, and litigation and controversy issues.
About The Mayerson Firm PLLC
The Mayerson Firm PLLC specializes in complex dispute resolution, especially regarding insurance-coverage matters for policyholders. Corporations, businesses, nonprofits, trade associations, unions, directors/officers, ERISA fiduciaries, and individuals look to The Mayerson Firm PLLC for cost-effective, vigorous and creative representation and problem solving.
Directors of public corporations, private businesses, non-profits, trade associations, and charities are protected against the risk of personal liability by a combination of direct indemnification from their organization and by the purchase of D&O insurance. High-level executives and officers, and federal-agency executives, likewise can be protected by various forms of D&O insurance.
The Mayerson Firm PLLC represents Boards of Directors and individual directors and their companies regarding the proper presentation of claims for recovery from their insurance companies. This work can include pursuit of litigation or arbitration with the insurers, but usually can be resolved through effective negotiation with insurers. The Firm also routinely assists in reviewing and negotiating policy wordings to ensure that directors, officers, and executives have the fullest protection under their insurance. For more details, please visit: https://www.mayersonfirm.com/
About Manatt, Phelps & Phillips, LLP
Manatt, Phelps & Phillips, LLP, is one of the nation's leading law and consulting firms, with offices strategically located in California (Los Angeles, Orange County, Palo Alto, San Francisco and Sacramento), New York (New York City and Albany) and Washington, D.C. The firm represents a sophisticated client base - including Fortune 500, middle-market and emerging companies - across a range of practice areas and industry sectors. For more information, visit www.manatt.com.
About Todd Associates, Inc.
Todd Associate’s is an insurance brokerage located in Cleveland Ohio. Todd’s Professional Liability Insurance Practice serves hundreds of organizations throughout the United States and focuses primarily on providing solutions to financial service providers. The Professional Liability Practice’s services include: (i) Brokerage – Development of insurance coverage specifications and negotiation of coverage with the insurance marketplace; (ii) Independent Consulting – Review of another broker’s work; (iii) Mergers and Acquisitions – Due diligence and coordination of insurance coverage.