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Judy Greenwald

Dodd-Frank liability issues are still unsettled for companies

January 27, 2013

SEC Dodd-Frank Wall Street Reform


Even with all its regulations not yet implemented, the complex 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act poses significant challenges for companies.

Trevor Howard, senior vice president, U.S. management liability for Liberty International Underwriters in New York, said the issue of Dodd-Frank's impact remains unsettled.

“There still is a multitude of rules that need to be drafted,” so a “true assessment of the act on the (directors and officers liability insurance) marketplace is pretty far down the horizon,” Mr. Howard said.

“We're still sorting through it,” said Peter Taffae, a D&O insurance expert at Los Angeles-based wholesale brokerage Executive Perils Inc. “It's still being tested out.”

Two significant issues resulting from Dodd-Frank are its clawback and “say-on-pay” provisions.

Its whistle-blower provisions pose additional risks for firms.

However, Michael O'Connell, New York-based director of Aon Risk Solutions' Financial Institutions Practice in New York, said while “Dodd-Frank doesn't create any new causes of action against directors and officers,” when looking at its provisions concerning executive compensation, corporate governance and whistle-blowers, “there are new obligations that really drive shareholder expectations and potentially lead to heightened exposures.”

For Aon's clients, this means “added scrutiny of the structure and breadth of covers they have under their D&O liability policies,” he said.

“Dodd-Frank imposes, among other things, a requirement on companies to develop an overall risk management plan and identify those areas where there is enterprise risk,” said Neil R. Pearson, a partner with law firm Edwards Wildman Palmer L.L.P. in New York.

This means firms need “to become far more keenly sensitive to enterprise risk as a whole than they were before,” he said.

Jack Flug, New York-based managing director with Marsh Inc.'s FINPRO unit, said Dodd-Frank also provides heightened regulatory powers to investigate directors and officers which, unlike investigations of the firms themselves, would be covered under D&O policies and increase underwriters' cost.

 



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