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Directors and officers liability insurance experts will be watching closely to see the new trends that may emerge with the Trump administration.
Its impact on the market is now a big unknown, said Sarah Downey, New York-based D&O liability product leader for Marsh L.L.C. “We are still learning what changes Donald Trump and the administration are going to implement,” she said. Their effect on D&O “remains to be seen.”
One major factor in the market has been the increase in federal securities class action litigation, which reached a record level last year, according to industry reports.
The increase has been fueled by merger and acquisition challenges, as plaintiffs move to file these cases in federal court as a result of a 2016 Delaware court ruling that discourages disclosureonly settlements.
A disclosure-only lawsuit is litigation filed by plaintiff attorneys following M&A deals that result in them being awarded legal fees when all they did was force defendants to provide largely immaterial disclosures about the deal without conveying any monetary benefit to shareholders.
One area of litigation that has been more pronounced is cross-border or international D&O litigation, with the emissions scandal surrounding Volkswagen A.G. a “huge example of this,” said Jackie Waters, Chicago-based managing director and practice leader of Aon Risk Solutions’ financial services group legal and claims practice.
Growth in this area has been spurred by the increase in litigation funding in international markets. Unlike in the U.S., where plaintiffs can file lawsuits without incurring any costs, losing parties internationally must often pay the legal costs, and so the availability of litigation funding is financing increased litigation, say experts.
Meanwhile, despite the New York attorney general’s investigation of Exxon Mobile Corp. related to the issue of climate change, experts say the issue is unlikely to have a major market impact because it potentially involves relatively few companies.
Experts also note that efforts to draw directors and officers into cyber risk litigation have been unsuccessful so far,
in part because cyber breaches have not been followed by significant stock price drops to date, although plaintiff attorneys are expected to continue their efforts in this area.
“The plaintiffs’ bar is persistent, and they’ve got a lot of resources, and I think they’ll keep probing” to find the right approach or case, said Edward Kirk, a partner with Clyde & Co. U.S. L.L.P. in New York.
Another factor in the market has been the U.S. Securities and Exchange Commission’s pursuit of individuals, which has had an “aggravating effect in that claims can last longer as individual insureds fight harder to be exonerated and potentially not barred” from working in the securities industry, said Tony Galban, senior vice president and North American underwriting manager responsible for D&O liability business for Chubb Ltd.’s financial lines division.
Directors and officers liability insurance policyholders are continuing to enjoy lower rates, increased capacity and broadening terms and conditions in their programs.