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Trump causes uncertainty in directors and officers market

Trump causes uncertainty in directors and officers market

NEW YORK — The uncertainty created by the Trump administration has filtered into the directors and officers liability market, according to comments made during the Professional Liability Underwriting Society’s D&O symposium in New York last week.

Fred Cooper, Florham Park, New Jersey-based executive vice president at Endurance Specialty Holdings Ltd. was asked during a session on financial institution D&O what the next systemic event that has the potential to create a hard market would be. 

“I don’t think you have to go far,” he responded. “Trump himself is a systemic event. In all seriousness, I think we’re going to see an era of regulatory rollback, and it’ll be very interesting to see how corporate executives are prosecuted” under the Trump administration.

While newly confirmed U.S. Attorney General Jeff Sessions has indicated he would support pursuing individual wrongdoers, “It’ll be an interesting time to see if that focus is followed through on, or if it gets beaten down by tweets,” Mr. Cooper said.

“We try to take lessons from the past, but we’re in the midst of one of the greatest crises of our generation,” based on President Trump’s actions in the first days of office where he has “reversed long-standing policies,” said Allison H. Barrett, executive vice president and FINEX financial institutions industry practice leader with Willis Towers Watson P.L.C. in New York, who moderated the session.

“You wake up every morning and wonder what he did today,” said Thomas Wronski, senior vice president, director of financial services, with Lockton Cos. L.L.C. in Houston.

“I don’t think we’re going to rate particularly high on his agenda,” said Darren Robbins, a partner with plaintiff firm Robbins Geller Rudman & Dowd L.L.C. in San Diego during a session on U.S. securities litigation.

The president wants less regulation, “which is a concern for us,” said Lauren McMillen Ormsbee, senior counsel at Bernstein Litowitz Berger & Grossman L.L.P in New York who represents institutional and private investors in securities litigation. His administration’s actions “could negatively impact investors, if not this year, then over the next few years,” she said.

During a session on whistleblowing, experts discussed how President Trump signed an executive order earlier this month that, without naming the Dodd-Frank Wall Street Reform and Consumer Protection Act explicitly, gives the Treasury Department the authority to restructure major provisions of the law. He has called the law a “disaster.”

Experts said, however, that they expect the U.S. Securities and Exchange Commission’s whistleblower program, which they deemed successful, will remain intact with the Trump administration.

“It’s been wildly successful, so I think it will be difficult for folks to take apart,” said Jordan A. Thomas, a partner and whistleblower chair at Labaton Sucharow L.L.P. in New York, and a former SEC assistant director who helped develop the whistleblower program, which was created in 2010’S Dodd-Frank. 

Other D&O issues

Other sessions at the conference included one that focused on international D&O.
“It is more important than ever you either have a program in place, or have what is most needed for the company,” said Jennifer J. O’Neill, New York-based head of international insurance programs and product development at Allianz Global Corporate & Specialty S.E. in New York. 

It is also a matter of looking at the insured’s global footprint, and regulatory risks, among other issues. “The underwriter, along with the broker, needs to look at the business to determine the best coverage available for the insured,” Ms. O’Neill said.

During the symposium, there was also a very well-attended keynote speech by Andrew Fastow, the former chief financial officer of now-bankrupt Enron Corp. who went to prison for six years in connection with its downfall.

Although his actions to boost Enron’s financial results were considered technically within the law, “What I did was wrong,” said Mr. Fastow. “I didn’t think about the ethics involved.”

Appearing at the same session was Linda Chatman Thomsen, former director of enforcement at the SEC, who had led the agency’s Enron investigation and is now a partner at Davis Polk & Wardwell L.L.P. in Washington.

Ms. Thomsen, who said she had never met Mr. Fastow before the PLUS symposium, discussed how a major factor in Enron’s downfall was its company culture. From the outside, she said, “it seemed like a frat party on steroids.” 




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