Insuring the Board – Unpacking the Intersection of D&O Coverage With Other Considerations

Key Takeaways:

• As with any insurance, directors and officers need to have a clear understanding of the purpose of D&O insurance and what it is designed to cover and what is not included – e.g., deliberate fraud, criminal acts, and uninsurable fines and penalties as well as other exclusions or limitations including thresholds for triggering coverage.
• The velocity, volatility, and interconnectedness of risk evolves over time even though D&O policies are typically written for one year terms. Does your company have a framework for evaluating risk, risk tolerance, and risk mitigation in the longer term?
• It’s not uncommon for companies –particularly when in an early stage - to make concessions on the amount or scope of coverage in order to manage pricing. But it’s important that those decisions are anchored in an awareness of the external and internal risk landscape, and contemplate future strategic and financial objectives for the company.
• Traditionally, most securities class actions involve financial misrepresentations, but boards should be aware that in the past several years there has seen a significant increase in ‘event driven’ securities litigation. These claims can often be classified as “ESG-related events” given the broadness of the category.