D&O Insurance Challenges: Mitigating Liability Due to Class Actions and Shareholder Claims
Insurance Renewals and Reduced Policy Limits, Captive Insurance and Other Alternatives
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Corporate Law
- event Date
Tuesday, September 14, 2021
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will address the limitations and claims being brought against corporate directors and officers in 2021. The panel will address the increase in shareholder and class action claims filed in the wake of COVID-19 and subsequent economic issues. The panel will discuss the limitations with renewing D&O policies and the likelihood of reduced policy limits, as well as the need to seek captive insurance offshore or other alternatives to mitigate risk.
Mr. Fehling dedicates his practice to advising corporate policyholders and their directors and officers in complex insurance coverage matters, from placement of complex insurance programs and policy reviews to claim advocacy through arbitration, litigation, trials, and appeals. As part of Hunton Andrews Kurth’s full-service insurance coverage practice, he works with clients to maximize insurance recoveries through policy analysis and audits, claims presentation and negotiation, alternative dispute resolution, and litigation.
Mr. DeVries represents clients facing insurance recovery issues. He also focuses his practice on class and mass torts, product liability, and complex civil litigation. He is experienced handling complex litigation for companies faced with major insurance, environmental, and toxic tort litigation. His insurance practice covers the gamut of insurance issues, including coverage for major property damage and business interruption losses, advertising-related liabilities, errors and omissions claims, director and officer claims, product liability claims, employment liability, fiduciary liability such as ERISA, False Claims Act liabilities, theft and other criminal-related claims, environmental and mass tort matters, and personal injury claims such as right to privacy and false imprisonment.
Ms O’Neil is a Senior Vice President at CAC Specialty and serves as a product development leader and claims advocate within its Legal and Claims Practice. Her focus is on management, professional and transactional liability insurance, including directors’ and officers’ liability, employment practices liability, fiduciary liability, cyber liability, errors and omissions, and crime insurance. Ms O’Neil has served as an advisor and advocate for a wide range of public and private clients, including several Fortune 500 companies, with a strong focus on securities litigation. Her insurance experience has been on both the brokerage and insurer sides of the business. Prior to joining CAC Specialty, Ms O’Neil was a Senior Vice President at JLT Specialty, leading the financial line Legal & Claims team. Prior to joining JLT, she was a product development specialist for Berkshire Hathaway Specialty Insurance where she was charged with negotiating and drafting management and professional policy wording for BHSI’s insureds. Before working on the insurer side of the business, Ms O’Neil was a Managing Director at Aon, serving as its financial services group’s D&O and Fiduciary Practice Leader.
The outbreak of the COVID-19 pandemic and the subsequent economic stress has exacerbated an already fraught time for corporate directors and officers. Corporate management is not only subject to claims ranging from securities class actions and merger objection suits to cyber liability and claims arising from their company's normal operations, but also disputes related to decisions made during the pandemic and lockdown orders.
D&O liability insurance is a necessary protection for any enterprise. Still, insurance policies are not written on a one-size-fits-all form and often are subject to negotiation and, upon renewal, renegotiation. Insured's counsel must ensure that the policy provides the sought-for coverage and adjust for additional risks that arise due to changed circumstances or actions by the company. Policy renewals may limit coverage of claims and set policy limits due to the current economic forces.
There has been an uptick in COVID-19 event-driven litigation against directors and officers as evidenced by two major class actions filed early in the wake of COVID-19 against a cruise line operator and pharmaceutical company. Both involve suits against the businesses for making false and misleading statements in public disclosures about COVID-19 to generate sales. These are cautionary tales regarding the potential for liability when making misleading company disclosures or other corporate mismanagement. It is not yet clear if these new kinds of event-driven litigation will be covered under a D&O policy.
Considering the increased costs and reduced coverage of D&O policies, many businesses are looking for alternatives. Some choose to reduce coverage, or in the case of Tesla, forgo D&O coverage and self-insure instead. Others are seeking captive insurance and bond coverage to breach the gap that typical D&O policies would cover.
Listen as our authoritative panel examines the current state of D&O liability, the extent and limitations of D&O policy coverage, the impact of COVID-19 on that coverage, and how renewal policies may be impacted. The panel will discuss lessons from recent cases regarding coverage disputes and potential pitfalls when reviewing and negotiating D&O policies.
- Reviewing and negotiating D&O insurance policies and renewals
- Coverages and exclusions
- Policy limits
- Coverage extensions
- Policy terms
- Impact of COVID-19
- Lessons from recent decisions regarding disputed coverage
- Norwegian Cruise Line
- Inovio Pharmaceuticals
- Alternatives
- Self-insure
- Captive insurance
The panel will review these and other key issues:
- Which sections of a D&O policy should counsel always review?
- When renewing D&O policies, what concerns should counsel address?
- How can D&O policies and renewals be tailored to fit the circumstances of the insured?
- How has COVID-19 impacted claims regarding D&O liability?
- What do recent cases show about the interpretation of D&O coverages and exclusions?
- What other kinds of insurance should counsel consider for claims that might impact directors and officers?
