The Hedge Fund & Investment Advisor s Guide to. D&O / E&O Insurance

Transcription

1 The Hedge Fund & Investment Advisor s Guide to D&O / E&O Insurance

2 Financial services companies require a special expertise in insurance product design and placement. Hedge Funds & Investment Advisors have an even higher level of concern when it comes to liability and how insurance can protect them. This document contains details on the risks and insurance for these dynamic entities: Directors & Officers Liability (D&O) Insurance Marketplace Trends in 2011 Insurance Coverages & Requirements for Hedge Funds & Investment Advisors Why Hedge Funds and Investment Advisors Purchase D&O/ E&O Insurance Types of Claims Hedge Funds and Investment Advisors are Likely to Encounter Who is Bringing Claims Against Hedge Funds & Investment Advisors? Peer Benchmark Analysis of Hedge Fund D&O/ E&O Insurance Coverage Limits Pricing Considerations for Hedge Fund D&O/ E&O Coverage Directors & Officers Liability (D&O) Errors and Omissions Liability (E&O) General Liability * Umbrella Liability * Fidelity & ERISA Bonds (Crime) Key Person Life Insurance Employment Practices Liability (EPL) Fiduciary Liability Workers Compensation * Commercial Auto Property * Kidnap and Ransom

3 2011 Marketplace Trends for Directors and Officers Insurance The soft market cycle experienced through the first half of 2011 is expected to continue unabated throughout the balance of the year. Increased capacity for directors and officers insurance is evident with new insurance markets putting capital at risk to write hedge fund business. With new market entrants into the hedge fund vertical, downward pricing pressure has permeated incumbent insurers who have lowered premiums and negotiated favorable policy language in order to stay competitive. With the Dodd Frank Law and increasing regulatory scrutiny, expectation is that policy wording surrounding coverage for regulatory actions will become more stringent. Further, insider-trading coverage continues to be a hot-button for insurers looking to limit exposure to costly defense expenses. Finally, there may be a contraction of reinsurance capacity as prior years claims experience continues to deteriorate. This may have an impact on available capacity in Insurance Coverages & Requirements for Hedge Funds & Investment Advisors These are the insurance coverages Hedge Funds & Investment Advisors are required to obtain and others that they should consider: Directors & Officers Liability (D&O) Errors and Omissions Liability (E&O) General Liability * Umbrella Liability * Fidelity & ERISA Bonds (Crime) Key Person Life Insurance Employment Practices Liability (EPL) Fiduciary Liability Workers Compensation * Commercial Auto Property * Kidnap and Ransom * Required coverages. For a detailed description of above insurance coverages, including why and when to purchase and premium basis, please refer to the Insurance Purchasing Guidelines for Hedge Funds and Investment Advisors. Why Hedge Funds and Investment Advisors Purchase D&O/ E&O Insurance To protect the adviser entity against claims alleging a wrongful act, error, omission, misstatement, misleading statement, neglect or breach of duty in providing or failing to provide professional services as an adviser to the fund(s). To protect the directors and officers of the fund(s) and the adviser entity (and general partners and members) against claims alleging a wrongful act, error, omission, or breach of fiduciary duty.

4 To provide defense costs. Defense expenses in claims against hedge funds can escalate rapidly because of the complex nature of hedge fund litigation. In most cases, once the policy retention (deductible) is satisfied, the insurer will advance defense costs - obviating the need to liquidate positions or borrow to fund the defense. The frequency of claims against hedge fund managers is increasing. The SEC has ramped up its investigation and enforcement actions against hedge funds. States attorney generals have also increased their scrutiny of hedge funds. Increased capital allocations from public employee pension funds and other institutional investors may result in more claim activity as these investors may be quicker to sue when things go wrong than private investors. Valuations of certain securities and the disappearance of markets for the trading of some securities may lead to claims against hedge funds as these market developments may: (a) cause some funds to limit or halt redemptions; (b) cause some funds to misstate performance numbers; and (c) cause some funds to report losses due to the need to mark to market problem securities. Many hedge funds have moved beyond traditional passive investments and now hold majority stakes in companies and have board representation. Fund managers face additional liabilities when they serve on outside boards. A D&O policy can be extended to cover these Outside Directorship exposures. A D&O/ E&O policy can also be extended to cover Employment Practices Liability. This important coverage protects the firm against employee claims for wrongful termination, discrimination, and sexual harassment. Hedge funds are purchasing D&O/ E&O coverage because their clients are demanding it. And some firms use it as a selling point as it gives investors another layer of protection in the event of a problem with their investment. Types of Claims Hedge Funds & Investment Advisors are Likely to Encounter Mismanagement Misstatement Negligence Misrepresentation made in the PPM or other communication Fraud Breach of duty Failure to supervise the investment adviser Failure to perform adequate due diligence in evaluating potential investments Failure to provide adequate disclosure of the investment risks involved Investing in assets or using strategies not mentioned in the PPM Failure to follow investment guidelines Failure to properly value assets Failure to invest

5 Failure to redeem investor funds in a timely and orderly manner Manipulation or misrepresentation of historical performance Excessive Fees Short Selling Trading Errors Breach of IT systems and Loss of proprietary data Contracting with substandard vendors / submanagers Conflicts of interest / related party transactions Market Timing / Late Trading Insider Trading Theft by Employees Miscalculation of NAV Non-compliance with ERISA Claims made by employees alleging discrimination, sexual harassment, or wrongful termination Claims by the SEC or state attorneys general or other regulatory body alleging violations of rules or statutes (relates to chart below, SEC Enforcement Cases By Area) Claims against individuals serving as directors on the boards of portfolio investments

6 Who is Bringing Claims Against Hedge Funds & Investment Advisors? Investors Limited Partners Regulatory Agencies Competitors Companies in which the Hedge Fund has invested Employees Peer Benchmark Analysis of Hedge Fund D&O/ E&O Insurance Coverage Limits A Limit is the monetary amount an Insured has requested coverage for, from an Insurance Carrier(s), for a particular peril. The Deductible (Retention) is the uninsured amount of money that the Insured must pay prior to the Insurance Carrier s Limit being paid out. Ascertaining the appropriate D&O / E&O insurance coverage is part art, part science. Through Peer analysis and insurance market experience, an average Limit/ Deductible range has been developed, as evidenced in the table below. A prudent benchmark is 3% to 5% of Total Assets Under Management. COMPANY AVERAGE FUND ASSETS AVG. LIMIT RANGE AVG. DEDUCTIBLE RANGE Company A $100M to $300 million $5M to $10 million $150K to $500 thousand Company B $300M to $600 million $5M to $15 million $250K to $500 thousand Company C $600M to $900 million $10M to $20 million $350K to $750 thousand Company D $900M to $3 billion $15M to $25 million $350K to $1 million Pricing Considerations for Hedge Fund D&O/ E&O Coverage Pricing for Hedge Fund D&O/ E&O coverage is dependent on various factors. Premiums are based upon assets under management, investment strategy (inclusive of portfolio construction, position concentration, leverage, liquidity, risk controls to mitigate loss), counterparty risk, management team experience, compliance, investor profile, transparency (communication with investors), historical fund performance, fund redemptions and claims history. Typical Primary Limit Pricing per $1 Million of Coverage: $13,000 to $25,000* * The price per million decreases with the purchase of higher limits.

7 William Gallagher Associates (WGA) is a leading provider of insurance brokerage, risk management and employee benefits services to companies with complex risks and dynamic needs. WGA has product specialization in many areas including risk management, executive risk, employee benefits, private client services. WGA s Financial Risks practice was formed to respond to the risk management and insurance brokerage needs of all types of financial services companies. With over 20 years experience in dealing with the insurance needs of hedge funds, banks, insurance companies, investment advisors, private equity firms, finance/leasing companies and money/asset managers, WGA responds to the highly specialized needs of these financial services clients. Should you wish to discuss any insurance issues for Hedge Funds and Investment Advisors, please contact Scott Davidoff, Doug Bixby or Roger Haynes in the Financial Risks Practice Group at WGA. Scott Davidoff WGA New York [email protected] Doug Bixby WGA New York [email protected] Roger Haynes WGA Boston [email protected]

8 Disclaimer: All information is provided without any warranty, express or implied, as to their legal effect and completeness. Further, coverage for any claims scenarios mentioned in this document, are dependent on the facts and allegations of a particular situation, as such coverage may not be triggered and/or a number of provisions or exclusions or endorsements thereto, contained in an Investment Advisor, Fund Professional and Directors and Officers Liability Insurance Policy, could be applicable which could limit or entirely exclude coverage. William Gallagher Associates One Penn Plaza, Suite 1805, New York, NY [email protected] ATLANTA, GA BOSTON, MA COLUMBIA, MD HARTFORD, CT NEW YORK, NY PRINCETON, NJ