DAY 1 – Tuesday, November 30, 2010
8:00 Registration and Continental Breakfast Begins
8:40 Co-Chairs’ Opening Remarks
Michael W. Early
Assistant General Counsel
Chicago Underwriting Group (Chicago, IL)
Kevin LaCroix
Partner
Oakbridge Insurance Services (Beachwood, OH)
9:00 The State of the D&O Marketplace: The Latest in Coverage and Legislation Impacting D&O Liability
Michael Karmilowicz
Executive Vice President, Head of Management Solutions
Zurich North America Specialties (New York, NY)
David F. Allen
Vice President
Gen Re Global Casualty Facultative (Stamford, CT)
Kevin LaCroix
Partner
Oakbridge Insurance Services (Beachwood, OH)
Carol A.N. Zacharias
Deputy General Counsel
ACE North America (New York, NY)
The D&O Liability insurance market has been in a state of flux for the last few years. While securities litigation continues to greatly impact the market, other types of claims have found increasing significance. With anti-corporate sentiment at an all time high, directors & officers continue to face greater scrutiny, from both regulators and private plaintiffs making the need for adequate coverage more important than ever before. This session will discuss:
- How Financial Reform and other legislative initiatives impact the D&O market and coverage
- What will be the impact of executive compensation bills and SEC guidance on D&O risk and coverage
- The effect of new entrants into the D&O market – is coverage broadening?
- Has the market hardened or softened?
- The latest trends in coverage
- What policies are covering
- What are the new offerings?
- Are pre-litigation expenses covered, including costs associated with regulatory investigations and examinations?
- Whether capacity is increasing
- How a more aggressive and contentious Plaintiffs’ Bar has changed the D&O landscape
- The effect of evolving Supreme Court case law and the potential impact of pending Supreme Court cases
- The changing mix of cases involved in D&O litigation, and the implications for claims frequency, severity, and insurance coverage
- How the record number of criminal FCPA prosecutions and increasing regulatory emphasis has impacted directors & officers today, in terms of their liability and D&O insurance
- How rising bankruptcies affect D&O exposure and coverage, and what policy tools are available to provide protection
- Will climate change guidance and rules affect D&O insureds and D&O insurance?
10:30 Morning Refreshment Break
10:45 The Concerns of the Insured: What do Companies Expect from their D&O Policy?
Angela R. Elbert
Partner & Chair, Directors’ & Officers’ Insurance Group
Neal, Gerber & Eisenberg LLP (Chicago, IL)
Matthew L. Jacobs
Partner
Jenner & Block LLP (Washington, DC)
Carl E. Metzger
Partner
Goodwin Procter LLP (Boston, MA)
William G. Passannante
Shareholder, Co-Chair, Insurance Recovery Group
Anderson Kill & Olick, P.C. (New York, NY)
- What companies expect from their brokers, risk managers, and outside counsel
- Taking into account policyholder goals: key issues brokers should address when pitching to prospective clients and discussing available policy
- What coverage concerns do directors & officers have in regards to coverage and liability
- Assessing the amount of coverage their directors & officers need
- Which claims most concern directors & officers – liability concerns regarding securities class actions and derivative suits
- Strategies for negotiating the best possible coverage and protecting the personal assets of directors & officers
- How companies are coping with increased regulatory scrutiny
- Communication and privilege issues between parties
12:00 Networking Luncheon for Delegates and Speakers
1:15 What’s New With Side-A and Excess Coverage: How to Ensure Your Policies Work as Intended
Dennis C. Kearns
Vice President and Executive Underwriter
Chubb Specialty Insurance (New York, NY)
Norman Allen
Senior Director, Corporate & Executive Protection
Woodruff-Sawyer Co. (San Francisco, CA)
Nancy D. Adams
Member
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(Boston, MA)
Mary E. McCutcheon
Partner
Farella Braun & Martel LLP (San Francisco, CA)
- What are the significant claims • and concerns currently affecting Side-A and Excess coverage markets
- Analyzing the varying forms of Side-A and Excess coverage available, and determining which best fi ts the needs of directors & officers
- Preventing a situation where coverage is exhausted or limited
- The impact of derivatives claims on Side-A and Excess coverage
- At what point does coverage drop down?
- Bankruptcy and insolvency concerns related to Side-A and Excess coverage
- How much should be had in proportion to normal limits?
- Working through Excess coverage concerns
- Managing relationships among the various parties
- The importance of monitoring claims
- Why excess carriers must evaluate coverage issues carefully
- Unique defenses, rights and duties that apply to excess carriers
2:30 Afternoon Refreshment Break
2:45 Assessing the Current State of Securities Litigation and How It’s Impacting D&O Coverage and Claims
Daniel Aronowitz
President
Ullico Casualty Co. (Washington, D.C.)
Steve Shappell
Managing Director, Global Legal and Claims Practice
Aon Financial Services Group (Denver, CO)
Jordan Eth
Partner
Morrison & Foerster LLP (San Francisco, CA)
Joseph G. Finnerty III
Partner
Chairman of US Litigation Practice on the East Coast
DLA Piper (New York, NY)
- Current trends in the securities litigation landscape as it affects D&O liability insurance
- Where we stand with activity related to Section 11 claims
- The effect of new and pending case law, including Supreme Court decisions on securities class actions
- How statute of limitation concerns will affect and D&O policies
- The lasting effects of Subprime Mortgage and Credit Crisis litigation: whether more claims are on the horizon and the status of claims which accrued during the past few years
- Opt outs – when is a class certified, as more and more potential plaintiffs opt-out of suits?
- New D&O liability concerns, including claims as a result of Data Privacy and Cyber Liability, M&A, Wage & Hour, and ERISA disputes
4:00 Shareholder Derivative Actions, Corporate Indemnification Rights, and Separate Representation of Individuals: Overcoming the Increasing Challenges Facing Defendants and Insurers
Ann Longmore
Executive Vice President
Willis North America (New York, NY)
Keith Hanson
Managing Partner
Hanson Peters Nye (Barrington, IL)
Joseph M. McLaughlin
Partner
Simpson Thacher & Bartlett LLP (New York, NY)
Robert P. Varian
Partner
Orrick Herrington & Sutcliffe (San Francisco, CA)
Derivative Litigation
- What to expect from increasingly common shareholder derivative suits
- Are derivatives suits being dismissed or gaining steam in light of recent decisions?
- Stock option backdating case law: where do we stand regarding dismissal for demand futility
- Understanding the role and effectiveness of Special
- Litigation Committees
- What are these claims settling for?
Corporate Indemnification Rights
- Have companies been successful in limiting or severing indemnification for “black hat” defendants?
Overcoming the Challenges Posed by Representing Separate Directors & Officers
- Strategies for working with multiple defendants and separate counsel
- Managing costs for each individual defendant
- Insights on how the new SEC cooperation policy impacts D&O litigation
- Are insurer’s paying Side-A coverage for individuals or for global settlements?
5:30 Conference Adjourns
DAY 2 – Wednesday, December 1, 2010
7:30 Registration and Continental Breakfast Begins
8:00 The Impact of Increased Regulatory Scrutiny on D&O, Including the Latest on Where the SEC is Setting It’s Focus
Cary B. Meiners
D&O Product Manager
Travelers (New York, NY)
Rhonda Prussack
Executive Vice President, Fiduciary & Executive Liability
Chartis (New York, NY)
Barry W. Rashkover
Partner
Sidley Austin LLP (New York, NY)
(former senior official in the SEC’s Division of Enforcement)
Norman J. Blears
Partner
Hogan Lovells (Silicon Valley, CA)
- How SEC reorganization and prioritization has and will continue to impact directors & officers
- How increased enforcement activity and prosecutions by the SEC and other regulators are affecting companies
- The latest on State Attorney General activity, including how AG’s are handling corporate investigations
- Department of Justice initiatives affecting D&O and fiduciary policies
- Trends in settlements with regulators
- ERISA and regulators
9:30 Managing Coverage and Costs: Significant Claim Concerns and the Reasonableness of Defense Costs
Anthony Kornacki
Claims Counsel
XL Insurance (Hartford, CT)
Thomas H. Bentz, Jr.
Partner
Holland & Knight LLP (Washington, D.C.)
Mary Craig Calkins
Partner
Howrey LLP (Los Angeles, CA)
Joseph P. Monteleone
Partner
Tressler LLP (New York, NY)
Significant Coverage Issues
- Understanding what is covered under a D&O policy
- When a “claim” is a “claim” under coverage
- How the SEC’s initiation of “formal” investigations (without the need for Commission approval) is impacting coverage
- Understanding coverage as it relates to pre-litigation costs:
- Does your D&O policy cover regulatory investigations and examinations?
- Subpoenas of directors and officers as non-party witnesses
- “Interviews” of directors and officers
- Avoiding the dangers of depleting D&O coverage
Reasonableness of Defense Costs
- Dealing with the rising cost of defense on multiple fronts
- Insurers’ litigation management and billing guidelines
- Expenses in responding to regulatory investigations and examinations – are “pre-claim expenses” covered?
- Determining when separate representation is necessary
- How recent decisions, including those from the Delaware Chancery Court, have impacted the reasonableness of legal fees awarded, and how this affects D&O coverage and shareholder derivative suits
- Second bites at the apple by excess insurers – Royal Indemnity Co. v. C.H. Robinson Worldwide, Inc.
- Allocation concerns, including the problems posed by increasingly common criminal investigations and prosecutions
- Arbitration of defense costs disputes
11:00 Morning Refreshment Break
11:10 Evaluating the Impact of Financial Institution Litigation on the D&O Market
Lou Ann Layton
Managing Director
FINPRO US Practice Leader
Marsh USA (New York, NY)
Anjali C. Das
Partner
Wilson Elser Moskowitz Edelman & Dicker LLP
(Chicago, IL)
Daniel J. Standish
Partner
Wiley Rein LLP (Washington, D.C.)
- Financial services litigation and the impact of such cases on D&O coverage
- Allocation concerns relating to different coverage policies held by financial institutions
- What has been the success of 10B-5 claims on the commercial banking industry to this point
- Have financial institutions found a hard market where others have not?
- Whether “regulatory exclusions” are finding their way into coverage
- To what extent the FDIC and other regulators have handled financial institution failures, and how this has impacted the D&O marketplace
- The latest on private investors bringing action against banks, both large and small
- Bankruptcy and insolvency considerations to take into account as they relate to D&O coverage
- Ensuring protection of directors & officers in the face of bankruptcy and insolvency
- Amending D&O contracts to respond adequately to bankruptcy proceedings
- Understanding who has priority in bankruptcy proceedings
12:10 Networking Luncheon for Delegates and Speakers
1:10 A Focus on Settlement Negotiations in the D&O Context: Attaining a Favorable Result for Your Client
Lawrence Fine
Senior Vice President & Chief Technical Offi cer
Financial Lines, Chartis Claims, Inc. (New York, NY)
Michael R. Goodstein
Member
Bailey Cavalieri LLC (Columbus, OH)
Kenneth E. McNeil
Partner
Susman Godfrey LLP (Houston, TX)
Angelo G. Savino
Member
Cozen O’Connor (New York, NY)
Moderator:
Michael W. Early
Assistant General Counsel
Chicago Underwriting Group (Chicago, IL)
- The effect of “anti-corporate” sentiment on the claims resolution process
- The use and effectiveness of “pre-litigation” settlement negotiations
- Taking into account pre-settlement considerations, including managing your client’s expectations and correctly valuing claims
- What are claims settling for?
- How effective is mediation in settling D&O claims?
- The effect of “shaving-of-limits” endorsements in excess policies
- Strategies on how to work with the claims counsel, brokers, clients, and the insured
- Effective tools and settlement strategies to achieve the best possible results
- What impact aggressive Plaintiffs’ attorneys have had on the settlement negotiation process
- Determining if and when a settlement is in your client’s best interest
- How to work with a client who does not wish to settle
2:25 D&O Activity Abroad: Assessing Risk and Coordinating Policies in a Time of Increased Global Litigation and Enforcement
Scott Misson
President, Management Liability Division
Navigators Group, Inc. (New York, NY)
Christine Williams
Senior Vice President
Financial Services Group, Division of Aon Risk Services
Northeast, Inc. (New York, NY)
Mary Pat Cormier
Partner
Edwards Angell Palmer & Dodge LLP (Boston, MA)
- Responding to the increased exposure concerns of being sued abroad, as companies continue to expand their international presence
- What coverage is available for companies with operations outside US
- How directors & officers can protect themselves from claims filed by foreign regulators, including the Ontario
- Securities Commission (OSC)
- Insights on how far a D&O policy will go – does a U.S. policy hold up abroad or should companies seek local policies?
- Key challenges facing multinational insurance programs
- Dealing with foreign suits against foreign registered companies
- Securities and derivative suits being brought from abroad
- What to take into account when opening subsidiary operations abroad or redomiciling overseas
- How the Foreign Corrupt Practices Act affects D&O coverage
3:20 Conference Ends and Registration for Workshop B begins
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