Directors & Officers and Employed Lawyers Liability Insurance:

Transcription

1 Directors & Officers and Employed Lawyers Liability Insurance: Your 2007 Guide to More Comprehensive Coverage A Presentation to the Silicon Valley Association of General Counsel August 17, 2007 Carl L. Blumenstein, Esq. Nossaman Guthner Knox & Elliott LLP 50 California Street, 34th Floor San Francisco, CA Phone: John M. Orr, Esq. Integro Insurance Brokers 101 California Street, Suite 1600 San Francisco, CA Phone: The information contained herein does not constitute a legal opinion and should not be relied upon by the reader as legal advice or be regarded as a substitute for legal advice. Copyright, 2007 Nossaman Guthner Knox & Elliott, LLP. All Rights Reserved.

2 Agenda Directors & Officers Liability Insurance Introduction to D&O The D&O Marketplace Current Issues Renewal Processes The General Counsel s Checklist: The Words Matter! Employed Lawyers Liability Insurance What Roles Do Your In-house Counsel Play? Potential Claims Against In-house Counsel Will the D&O Policy Provide Coverage? Employed Lawyers Insurance 2

3 Directors & Officers Liability Insurance John M. Orr, Esq. Copyright, 2007 Integro Insurance Brokers. All rights reserved. 3

4 Introduction to D&O: Anatomy of the Policy Claims Against Directors & Officers Claims Against Entity No Insurer pays loss directly $0 self-insured retention Personal asset protection Indemnification? Yes Insurer reimburses corporation for amounts paid as indemnity Self-insured retention applies Balance sheet protection Securities claims only, no coverage for nonsecurities claims Insurer reimburses corporation Self-insured retention applies Balance sheet protection Side A Side B Side C 4

5 Program Considerations: Many Options Breadth of coverage ranges from Indemnity Trusts (significant risk retention) to multiple insurance products (significant risk transfer) Broader Coverage Premium Expense 5

6 Factors Affecting the D&O Marketplace Despite increases in the number of financial restatements, as well as in average and median securities class action settlements, you continue to experience a soft and softening D&O market, due in large part to increased D&O capacity and record low class action filings. Hardening Factors General health of the economy and (dare we say?) the effects of Sarbanes-Oxley Softening Factors 6

7 Factors to Watch U.S. Supreme Court decision in Tellabs a uniform standard for pleading scienter (more later) Credit Suisse & Stoneridge: How will two other Supreme Court cases affect you? Bill Lerach quits power shifts within the plaintiffs bar may change the landscape of securities litigation Increased litigation in U.S. against foreign companies listed on U.S. exchanges, plus developing American-style litigation overseas (what is F-Cubed? more later) Stock options backdating Subprime lender lawsuits already mounting 7

8 Current Issues: The Tellabs Case Question: What must a plaintiff plead under the PSLRA to establish a "strong inference" that the defendant acted with the requisite mental state of scienter? The Holding: To qualify as "strong," an inference "must be more than merely plausible or reasonable -- it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. Reaction of the markets, impact on you This ruling will make the lives of plaintiffs lawyers incrementally more difficult, but not impossible. [Yet] this was not a ringing victory for the defense side. All the plaintiffs' lawyers I have talked to are breathing a sigh of relief. James D. Cox, Duke University 8

9 Current Issues: International D&O Concerns The Natives Are Getting Restless 299 shareholder proposals filed at continental European firms through June 2006, up 25% over prior year; 57% of those were Board related (Source: ISS) U.S. style class actions adopted or under consideration by a growing number of countries, with traditional checks against litigation abuse increasingly questioned Greater cooperation between US plaintiff firms & foreign counterparts Royal Dutch Shell Settlement Case brought under a Dutch statute that allows for parties to a dispute to propose a negotiated settlement to the Court (even absent underlying litigation). Total value of settlement about $450M Worldwide Class Actions? Foreign Investors, Foreign Companies, Foreign Exchanges (F-Cubed): Following Vivendi Universal, are more worldwide class actions on the horizon? 9

10 Renewal Processes Develop renewal strategy early: Update risk profile and exposures analysis Assess risk tolerance, alternative risk retention and risk transfer alternatives Evaluate adequacy of limits and SIR benchmarking, peer analysis, litigation scenario assessments Program analysis identifying terms and conditions priorities Preparation of submissions Underwriter meetings Negotiation of policy pricing, terms and conditions Delivery of primary proposal Continued negotiation Program analysis Binding of program Issuance and delivery of policies in timely manner Continued service support: Market, emerging exposures evaluation Continued support of coverage and claims specialists (claim trends, updates on case authority construing policy terms/conditions, and more) Claim support 10

11 The General Counsel s Checklist: The Words Matter! 11

12 The General Counsel s Checklist: The Words Matter! 12

13 Employed Lawyers Liability Insurance Carl L. Blumenstein, Esq. Copyright, 2007 Nossaman Guthner Knox & Elliott LLP. All rights reserved. 13

14 What Roles Do Your In-house Counsel Play? Business advisor/consultant? Member of Board of Directors? Investigator (e.g., employment, financial issues) Public relations? Compliance officer? Legal advisor to corporation, employees, directors, outside parties? Others? 14

15 Potential Claims Against In-house Counsel Securities fraud - Federal and state law - Lawsuits and regulatory Options back-dating ERISA Breach of fiduciary duty/ Prudent man standard Sarbanes-Oxley Bankruptcy trustee Common law malpractice - By employer company - By third parties 15

16 Will the D&O Policy Provide Coverage? D & O policies typically provide little protection Coverage for officers only May exclude professional services Limits shared with other insureds Insured vs. Insured exclusion precludes claims by company or other officers or directors 16

17 Employed Lawyers Insurance Key policy terms, typically Claims made and reported coverage Insurer has duty to defend Defense costs reduce indemnity limits Covers contract attorneys, moonlighting Covers wide variety of claims 17

18 Employed Lawyers Insurance Claims typically covered Securities claims, lawsuits and regulatory Claims by company, company employees Non-client third parties Sarbanes-Oxley Employment claims Moonlighting coverage typically available 18

19 Employed Lawyers Insurance Possible exclusions Established dishonest, criminal, fraudulent act by insured ERISA Fines and penalties Covered by D & O policy Arising from outside business pursuits 19

20 Speaker Profile: John M. Orr, Integro Insurance Brokers John Orr is a Principal of Integro Insurance Brokers, serving clients as Senior Coverage and Claims Counsel on matters involving Directors & Officers (D&O) liability and other management and financial risk lines of insurance. He specializes in underwriting and indemnification issues, transactional issues and legal and regulatory developments affecting coverage, as well as complex claims, including securities class actions, shareholder derivative lawsuits, commercial and employment litigation. He also presents to and advises boards of directors. Formerly a Partner with the national law firm of Arter & Hadden and a Senior Vice President of Marsh, Inc., John is experienced in virtually every facet of D&O liability and insurance. In private practice for the first ten years of his career, he represented insurers as coverage counsel in securities litigation. He also represented insurers as litigation counsel in coverage disputes, including bad faith and declaratory relief proceedings. John received his J.D. and B.A. from the University of Southern California and was a Visiting Student at the University of Kent at Canterbury, U.K. 20

21 Speaker Profile: Carl L. Blumenstein Nossaman Guthner Knox & Elliott LLP Carl Blumenstein specializes in complex business litigation, primarily insurance coverage and employment law disputes. He represents policyholders regarding their rights under all types of insurance policies. Mr. Blumenstein has obtained insurance recoveries for environmental, employment and intellectual property matters. His employment law experience includes representing private and public entities and individual employees in disputes involving wrongful termination, discrimination and harassment, disability, drug testing, trade secret misappropriation and violations of constitutional law. Carl also provides service as a mediator in civil disputes. Mr. Blumenstein clerked for the Honorable Charles A. Legge, District Judge of the United States District Court in San Francisco and also for the Honorable Daral G. Conklin, United States Magistrate for the District of Hawaii. He was recognized by San Francisco magazine in 2004 as a Northern California "Super Lawyer" in Insurance Coverage Law. Mr. Blumenstein received his J.D. from the University of California, Berkeley, and his A.B., cum laude, from Princeton University. 21

22 Nossaman Guthner Knox & Elliott LLP 50 California Street, 34th Floor San Francisco, CA T: F: Integro Insurance Brokers 101 California Street, 16 th Floor San Francisco, CA T: F: License #0E