The Cost Drivers of Directors and Officers Liability: Part 2 – Legislation and Trends
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Directors and Officers Liability (D&O) insurance is a fundamental component of any construction company’s risk management program. Due to legislation over the last decade, there’s been a spike in whistleblowing and reporting of D&O claims – leaving your company vulnerable to expensive lawsuits.
Securities Exchange Commission (SEC) regulations continue to impact the cost of D&O insurance. Publicly held companies especially must be cognizant and keep current on SEC disclosure obligations and provisions in the Sarbanes-Oxley (SOX) Act of 2002, which was enacted in response to the corporate scandals of Enron, Tyco, WorldCom and others.
Also recent changes to the Dodd-Frank Wall Street Reform and Consumer Protection Act have caused a spike in whistleblower reporting, bringing to light many D&O claims and increasing the need for D&O insurance. The new whistleblower provision in the Act now gives whistleblowers a “bounty,” or monetary compensation, if the lawsuit results in more than $1 million in monetary sanctions. Given this new incentive, there has already been an increase in the number of whistleblowers that have emerged since the Act added the provisions in early 2011.
Trends in D&O Lawsuits
It’s no surprise that as litigation increases, the price of D&O insurance increases as well. In addition, as the litigation process grows lengthier and if multiple lawsuits erupt from a single transaction, a company can quickly exhaust its primary layer of D&O coverage.
Some types of lawsuits occur less often, but result in catastrophic losses. Other types result in smaller payouts, but occur more frequently. Nonetheless, defense expenses can cost millions of dollars, even if the director or officer is not found liable. Some of the types of lawsuits that affect directors and officers include:
- Breach of fiduciary duty lawsuits
- Employee Retirement Income Security Act (ERISA) lawsuits
- Employment-related lawsuits
- Mergers and acquisitions (M&A) and “merger objection” lawsuits
- Securities class-action lawsuits
- Shareholder derivative suits
Within the last few years, there has been an increase in M&A lawsuits. In 2011, there were more than 350 lawsuits regarding M&A. Some M&A cases involve multiple lawsuits and a lengthy litigation process, which can deeply cut into a company’s primary D&O policy.
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