Insurance Limited For Insider Trading Defense

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1 Insurance Limited For Insider Trading Defense Charles E. Leasure, III, Pepper Hamilton LLP The May 11, 2011 conviction of Galleon Group hedge fund founder Raj Rajaratnam cast a spotlight on a recent expansion of federal efforts to root out and punish illegal insider trading. According to the Wall Street Journal, the Securities Exchange Commission (SEC) and the Department of Justice (DOJ) have devoted more resources to insider trading investigations. 1 The DOJ, which prosecutes criminal cases developed by the SEC, filed at least 47 cases alleging insider trading in the past 18 months. Thirty six of these cases resulted in guilty pleas or guilty verdicts. 2 Manhattan U.S. Attorney Preet Bharara has publicly stated that insider trading is a priority for his office. 3 This heightened federal attention increases the risk that a publicly traded company or its officials may be swept into an insider trading case. Even if no charges result, an insider trading investigation entails significant costs: outside counsel fees, expert forensic and accounting analysis, and burdensome document requests, including retrieval of electronic materials. The question that inevitably arises is whether a company s insurance will cover its expenses and the personal expenses of employees touched by an investigation. The answer depends largely on the terms of the company s insurance policies and the outcome of the investigation. Where to Look for Insurance Coverage Directors & Officers Liability Insurance The primary potential source of insurance coverage for an insider trading investigation is a company s directors and officers (D&O) liability insurance policy. Companies buy such insurance to protect management against individual liability for actions taken in the course of their duties. The D&O policy will oftentimes reimburse a company for costs and expenses that it provides to its officers and directors under indemnity provisions. Many D&O policies also offer entity coverage for securities claims that are brought against the company itself. The terms of a D&O policy determine the extent to which insurance will pay for the costs of responding to SEC inquiries regarding insider trading and defending against potential criminal charges brought by the DOJ. D&O policies are not standardform policies every carrier has its own policy form and the terms differ. In order to assess the scope of coverage available, a company must analyze the actual language contained in its current policy to know what it has and how or if the policy will respond to a claim. Most D&O policies provide coverage for all Loss resulting from a claim for wrongful acts. Loss usually includes costs incurred for the defense of a legal action. Definitions vary, but a wrongful act can be defined, in part, as any error, misstatement, misleading statement, act, omission neglect or This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. Bloomberg Finance and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.

2 breach of duty actually or allegedly committed or attempted by any of the Insured Persons.... Accordingly, many insider trading allegations will trigger an insurer s obligation to reimburse or advance defense costs. Exclusions and endorsements to the policy will dictate whether there is indemnity coverage for the insider trading allegations. An insured loss can include damages, settlements, and defense costs. Fines and penalties are uninsured, either by law or the terms of the contract. Other Lines of Insurance Comprehensive General Liability (CGL) insurance typically covers third-party bodily injury and property damage claims and would not likely provide coverage for insider trading claims. Similarly, advertising injury and personal injury coverage under CGL policies would likely not provide coverage. First-party property coverage does not apply to insider trading claims, as there is no physical property claim. Crime bonds and fidelity bonds insure against employee theft and embezzlement. Insider trading does not fit within any of these insurance programs. When the target of an investigation is a professional, the attorney or professional services firm may look to a professional liability insurance policy to cover defense costs. Coverage under such a policy is likely to be even more limited than under a public company D&O policy. Professional liability policies universally exclude coverage for criminal or fraudulent behavior. Further, while malpractice insurance almost always provides a duty to defend, it probably only covers claims arising from the provision of covered professional services. Leaking inside information for investment gains would not likely qualify. The analysis would be similar under the terms of an accounting firm s errors and omissions (E&O) policy. The Guilty Must Pay When a company official is convicted of insider trading, it is unlikely that any insurance will provide coverage. Most D&O policies expressly exclude losses resulting from fraud or other criminal activity. By definition, insider trading is a form of securities fraud and therefore would be subject to such an exclusion. Further, D&O policies typically exclude losses relating to illegal profits or remuneration to which the insured was not entitled. This exclusion would apply to any insider trading that benefited the targeted employee. D&O policies almost universally exclude coverage for criminal fines or other penalties. Fines and disgorgement orders are often involved in insider trading actions. A fraud or personal profit exclusion typically precludes coverage for claims: (a) based upon, arising from or in consequence of any deliberately fraudulent act or omission or any willful violation of any statute or regulation by such Insured Person, if a final, non-appealable adjudication in any underlying action or proceeding to the Insured Person establishes such a deliberately fraudulent act or omission or willful violation; or (b) based upon, arising from or in consequence of such Insured Person having gained in fact any personal profit, remuneration or advantage to which such Insured Person was not legally entitled, if a final, non-appealable adjudication in ay underlying action or proceeding establishes such personal profit, remuneration or advantage. The key language to consider in the fraud and personal profit exclusions is final adjudication. If it is drafted like the example above, an insured could have defense costs paid or advanced for an insider trading case until there is a final adjudication proving the allegations. A guilty plea or jury verdict upheld on appeal would qualify as a final adjudication under the above example. Merely being suspected or investigated for insider trading, however, would not trigger the exclusion if the final adjudication language is

3 present. From the insured s point of view, the desire to recover defense costs can exert pressure to resolve a case in a way that avoids a final adjudication that would vitiate coverage. For example, pleading no contest may leave open the ability to negotiate for insurance coverage. However, some newer versions of the fraud and personal profit exclusions preclude coverage if there is a plea of nolo contendere. Importance of the Defense Obligation Whether any insurance is available for a director, officer, or employee subject to an insider trading investigation often turns on whether the D&O policy provides for the payment of defense costs in contesting charges or allegations. Many D&O policies issued to public companies explicitly state that the insurer has no duty to defend, but rather is obligated to reimburse or advance defense costs. In many circumstances, the insurance company is obligated to advance defense costs to an insured during the pendency of the action, regardless of the nature of the allegations. When there is an obligation to pay defense costs, the insurer generally must pay for the defense of all claims against the insured, even claims that would not be covered if proven. The net result is that insurance coverage may be available to mount a defense of an insider trading prosecution. However, if found guilty, or other allegations are proven, the defendant may be required to reimburse the insurer for the costs advanced for the defense if the policy contains a reimbursement obligation. Where defense costs are included in the limits available under the policy, they serve to reduce any amount available to pay an indemnity claim. These costs can be significant. Joe Nacchio, the former CEO of Qwest, reportedly spent $25 million in defense of his insider trading case. 4 Some reports put Rajaratnam s defense costs in excess of $40 million. 5 The amount of insurance available in primary and excess layers or other certain dedicated policies is also of great importance in major cases; the insurance can be exhausted with defense costs only. When a D&O policy includes a duty to defend or (more likely) the obligation to advance defense costs, the insurer may still have substantial control of the defense. There often will be a number of issues relating to that control, including the timing and amount of advancement of defense costs; the right to select counsel; adherence to an insurer s litigation guidelines; ability to settle a claim; and the insured s duty to cooperate. Investigation Costs Before Charges Are Brought Even before insider trading charges are filed, the cost of responding to an investigation can mount. The Rajaratnam case was built on wiretaps, but an insider trading inquiry typically is conducted through the production of a large volume of documents, witness interviews, and depositions. Company officials not directly suspected of insider trading can get caught up in the investigation. Obtaining insurance coverage for costs incurred prior to any formal charges being filed can be tricky. Coverage typically is not triggered until there is a claim within the meaning of the policy. Requests for information, even a formal subpoena, may not qualify. In addition, many D&O policies expressly exclude coverage relating to regulatory investigations. 6 The insurance market is beginning to respond to this informal investigation need and some D&O policies provide this coverage though sometimes with a sublimit that is much lower than the full policy limit. A company s obligation to indemnify a director, officer, or employee for costs related to an insider trading investigation is a separate question from the scope of available insurance coverage under the company s D&O policies. The company s indemnification obligation is usually determined by its certificate of incorporation, by-laws, and employment agreements. As with the insurance question, a formal determination of criminal or fraudulent behavior typically would negate the company s obligation (or even its ability) to indemnify. Prior to such a determination, however, the company likely would have to front the legal costs. For this reason, it is worthwhile for a company to review its indemnification obligations

4 and attempt to tailor its insurance coverage to cover its obligations to the greatest extent possible or allowable by law. Coverage for Professional Service Providers Several recent high-profile insider trading cases have involved alleged tips from professional service providers with access to nonpublic information about acquisitions or financial results. In one of these cases, Matthew Kluger, a lawyer who worked at several different firms, recently pled guilty in an insider trading case that spanned 17 years of unlawful insider tipping. Mr. Kluger provided nonpublic information he obtained while working as a lawyer at the various firms to an accomplice who traded on the information. The illegal profits from these trades allegedly amounted to over $32 million. 7 The recent indictments and guilty pleas by professional expert networks is similar in nature to the attorney insider trading cases. At least eight associates of expert network firms have been charged by the U.S. Attorney in Manhattan. 8 Conclusion In short, whether insurance will cover the defense or indemnity of an insider trading case depends on the specific language of any relevant D&O policy. In most cases, the policy will be limited to providing defense costs. A guilty verdict, plea, or other final adjudication of guilt will preclude an insurance recovery. As the trend of increased federal scrutiny progresses, the insurance market will respond with new products and policy language some that are restrictive, and others that expand available coverage. D&O policies are negotiable, and a company seeking D&O coverage should consider with its professional advisors the particular language being offered by carriers before making the decision to purchase. Charles E. Leasure, III is of counsel at Pepper Hamilton, LLP, resident in the Philadelphia office. He has practiced insurance and reinsurance law for over 20 years and provides a full range of litigation, arbitration and counseling services. His clients include insurers, reinsurers, reinsurance intermediaries, insurance brokers, and reinsurance pool managers. 1 Jean Eaglesham and Michael Rothfeld, New SEC Approach Targets Wider Array of Players as Insider-Traders, Wall St. J. (Nov. 23, 2010). 2 Peter Lattman and Azam Ahmed, Hedge Fund Billionaire is Guilty of Insider Trading: Verdict Expected to Embolden Prosecutors, N.Y. Times, May 12, 2011, at A1. 3 Michael Rothfield and Chad Bray, Jury Convicts Galleon Founder Rajaratnam, Wall St. J. (May 11, 2011). 4 David Voreacos, Ex-Qwest Chief Nacchio Sues Trial Lawyers, Claiming Malpractice, Bloomberg News (Mar. 23, 2011). 5 Michael Rothfeld and Chad Bray, Loss Raises Questions Over Defense Strategy, Wall St. J. (May 12, 2011). 6 Bloomberg LawNotes, Overview of the Regulatory Exclusion in Directors and Officers Liability Insurance Policies. 7 Chad Bray, Susan Pullman and Vanessa O Connell, Feds: Insider Scheme Spanned 17 Years, Wall St. J., at A1 (Apr. 7, 2011). 8 Peter Lattman and Azam Ahmed, Insider Inquiry Pivots its Focus to Hedge Funds, N.Y. Times, at A1 (Feb. 9, 2011). Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require

5 modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. Bloomberg Finance and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy Bloomberg Finance All rights reserved. Bloomberg Law Reports is a registered trademark and service mark of Bloomberg Finance

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