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Directors and officers (D&O) insurance insights 2022 - Allianz ...
Directors and officers (D&O)
      insurance insights 2022
          Boards of management are vulnerable to a litany of business
          exposures, any of which could potentially derail the financial
          health, continued service and reputation of any company.
          Following are five D&O mega trends companies should watch
          for and guard against in 2022, according to Allianz Global
          Corporate & Specialty (AGCS) financial lines and D&O experts.

Allianz Global Corporate & Specialty
Directors and officers (D&O) insurance insights 2022 - Allianz ...
D&O INSURANCE INSIGHTS 2022

About
AGCS
Allianz Global Corporate & Specialty
(AGCS) is a leading global corporate
                                         1. Uncertain
insurance carrier and a key business
unit of Allianz Group. We provide
risk consultancy, Property‑Casualty
                                         insolvency
insurance solutions and alternative
risk transfer for a wide spectrum of
commercial, corporate and specialty
                                         outlook
risks across 10 dedicated lines
of business.                             continues to
Our customers are as diverse as
business can be, ranging from Fortune
Global 500 companies to small
                                         concern
businesses, and private individuals.
Among them are not only the world’s
largest consumer brands, tech            Many different projections were made during 2020 about
companies and the global aviation        the impact Covid-19 would have on the global economy,
and shipping industry, but also          particularly with regards to anticipating an increase in
satellite operators or Hollywood film    the number of insolvencies. Those predicting a decrease
productions. They all look to AGCS       in the number of insolvencies by the end of 2020 were in
for smart answers to their largest       the minority, but this is, in fact, what happened. The Euler
and most complex risks in a dynamic,     Hermes Global Insolvency Index1 ended 2020 with a -12%
multinational business environment       y/y drop, following a steady decline through the year.
and trust us to deliver an outstanding
claims experience.                       At the end of 2021 the Euler Hermes index is expected to
                                         close at -6% y/y. From a US bankruptcy filing perspective,
Worldwide, AGCS operates with its        according to Cornerstone Research2 , in the first half of
own teams in more than 30 countries      2021 43 companies filed for bankruptcy, less than half of
and through the Allianz Group            the number of bankruptcies filed in 1H 2020, but slightly
network and partners in over 200         above the 2005-2020 annual average of bankruptcy filings
countries and territories, employing     (based on Chapter 7 and Chapter 11 filings for private and
around 4,400 people. As one of the       public companies with over $100mn in assets).
largest Property‑ Casualty units of
Allianz Group, we are backed by          From a D&O underwriting standpoint, this recent trend
strong and stable financial ratings.     on insolvencies could eventually lead underwriters or
In 2020, AGCS generated a total of       insurance buyers to expect a relaxing of terms and
€9.3bn gross premium globally.           conditions next year compared with what the expectations
                                         were for 2022 a year ago. However, the reality is that large
www.agcs.allianz.com                     state interventions took place in many countries to support
                                         companies, preventing a liquidity crisis. Therefore the
                                         impact of the phasing out of these measures still remains a
                                         concern for D&O underwriters.

2                                        1 Allianz Research, Euler Hermes, “Insolvencies: We’ll be back”, October 6, 2021
                                         2 Cornerstone Research “Trends in Large Corporate Bankruptcy and Financial
                                           Distress: Midyear 2021 Update”
Directors and officers (D&O) insurance insights 2022 - Allianz ...
D&O INSURANCE INSIGHTS 2022

                                                            Global insolvency index –
                                                            quarterly changes y/y in %
                                                 15%

                                                 10%
                                                                       10%
                                                       7%      8%
                                                  5%                            6%
                                                                                     1%
                                                 0%
                                                                                                                                   -2%
                                                 -5%

                                                -10%
                                                                                                  -13%
                                                -15%                                      -16%
                                                                                                           -18%       -19%
                                                -20%
                                                       Q1      Q2          Q3   Q4   Q1   Q2          Q3   Q4          Q1          Q2
                                                                    2019                       2020                         2021

                                                                                                 Source: Euler Hermes, Allianz Research

While the first signs of this relaxation in governmental       Historically, insolvency is a major cause of D&O claims
supporting measures are already underway around the            as insolvency practitioners look to recoup losses from
world, significant uncertainty remains around potential        directors. There are many ways that stakeholders could go
new future virus dynamics, vaccination rates, the general      after directors following insolvency, such as alleging that
macroeconomic environment and the response of central          boards failed to prepare adequately for a pandemic or for
banks, and, equally, what the impact of these factors will     prolonged periods of reduced income.
be on capital markets.
                                                               At the same time recent bankruptcy cases can remain in
The recent Allianz Research/Euler Hermes published             D&O underwriters’ memories for a long time. Prominent
report states that “Our Global Insolvency Index would post     examples in 2021 are US bankruptcy filings, such as
a +15% y/y rebound in 2022, after two consecutive years        drillship owner Seadrill Limited and retail property owner
of decline (- 6% in 2021 and -12% in 2020), but business       Washington Prime Group, Inc. Meanwhile, the near-collapse
insolvencies would still remain below pre-Covid-19 levels in   of Chinese property giant Evergrande generated headlines.
a majority of countries (by -4% in average).”
                                                               “Insolvency exposures remain a key topic in the D&O space
Mixed trends are expected across the world. In less            and underwriters are increasingly looking into forward-
developed markets, such as Africa or Latin America, the        looking key performance indicators and predictive
number of insolvencies is expected to increase quicker         modeling tools,” says Shanil Williams, Global Head of
compared to more developed economies, such as                  Financial Lines at AGCS. As part of a broader Allianz data
France, Germany and the US, where the impact of the            and expertise sharing collaboration, D&O underwriters
governmental support is expected to last for longer.           at AGCS are actively using the Euler Hermes Insolvency
                                                               Grade. “This provides a one-year probability of bankruptcy
                                                               and is an integral part of the D&O risk assessment at
                                                               AGCS,” adds Williams.

                                                                                                                                         3
Directors and officers (D&O) insurance insights 2022 - Allianz ...
D&O INSURANCE INSIGHTS 2022

                                                2. SPACs exposure
                                                grows for D&Os
                                                Although Special Purpose Acquisition       SPACs, also known as ‘blank check
                                                Companies (SPACs) have been around         companies’, represent a faster track
                                                for decades, 2020 was a breakout           to public markets with a less arduous
                                                year. This surge grew into a high-         path for companies looking to go
                                                octane investment in early 2021,           public. Advantages and conditions
                                                accounting for more than 50% of newly      fueling the growth of SPACs over
                                                publicly-listed US companies. During       traditional Initial Public Offerings
                                                the first half of 2021, the number         (IPOs) include smoother procedures,
                                                of SPAC mergers, both announced            less regulatory and process burdens,
                                                and completed, more than doubled           shorter timelines to complete a
                                                the full year total of 2020 with 359       merger with target companies (60
                                                SPAC filings, garnering a combined         to 90 days versus six to 12 months
                                                US$95bn raised1 . In Q1 2021 alone,        between the initial filings and the
                                                there were 298 SPAC filings raising        public offering for traditional IPOs),
                                                up to $82.8bn. However, in Q2 2021,        low interest rates and an increased
                                                the number plummeted to 61 filings         availability of capital sources.
                                                in the US with only $11.9bn raised.
                                                The slowdown is considered mainly          So far the SPAC boom has been
                                                a result of pronouncements by the          largely concentrated in high-growth
                                                Securities Exchange Commission (SEC)       industries such as technology,
                                                to increase scrutiny on SPACs, for         financial services and healthcare.
                                                example, by issuing new accounting         Since 2019, in the US, 82 SPACs have
Offering a                                      rules now classifying SPAC warrants as
                                                liabilities instead of equities.
                                                                                           formed into target companies in
                                                                                           technology2 – far more than in any
new, more                                       It is a different story across the rest
                                                                                           other sector.

efficient route                                 of the world. The growth of SPACs in       As the playing field is still flooded with

to public                                       Europe may not match the scale of the
                                                US boom, but there is still a growing
                                                                                           pursuant SPACs and the demand for
                                                                                           targets remains strong, the increased

markets,                                        expectation that it will increase. There
                                                are only limited obstacles presented
                                                                                           momentum of SPAC activity is
                                                                                           expected to remain the same through

SPACs also                                      by EU capital market laws, even
                                                though SPACs in the EU face some
                                                                                           2022 outside of the US. It is also key to
                                                                                           watch the sustainability and longevity
carry a set                                     challenges because of strict company
                                                law requirements. In the Asian
                                                                                           of merger activities over the medium-
                                                                                           to long-term horizon.
of specific                                     financial hub, the market is slowly
                                                gaining momentum with a significant
‘insurance-                                     uptick in companies in China, Hong

relevant’ risks
                                                Kong and Singapore as a new route to
                                                accessing capital markets.

4                   1 CB Insights, What is a SPAC? July 14, 2021
                    2 Katten, 2021 SPAC survey report
Directors and officers (D&O) insurance insights 2022 - Allianz ...
D&O INSURANCE INSIGHTS 2022

                                                              SPAC filings and total raised
                                                              Q1 2018 to Q2 2021
                                         Total raised $bn                                                                                                                      Filings
                                         100                                                                                                                                               300
                                          90                                                                                                                                               270
                                          80                                                                                                                                               240
                                          70                                                                                                                                               210
                                          60                                                                                                                                               180
                                          50                                                                                                                                               150
                                          40                                                                                                                                               120
                                          30                                                                                                                                               90
As the SPAC market develops, the
                                          20                                                                                                                                               60
insurance market also changes and         10                                                                                                                                               30
adapts coverage solutions to provide       0
                                                Q1 Q2 Q3 Q4                             Q1 Q2 Q3 Q4                        Q1 Q2 Q3 Q4                              Q1 Q2
                                                                                                                                                                                           0

adequate protection for the key                     2018                                    2019                               2020                                  2021
participants (sponsors, directors and
                                                                                                                                                                Source: CB Insights
shareholders) in a SPAC deal.

While being able to use a new
more efficient route to public                                US SPACs as % of IPOs
markets, SPACs carry a set of                                 by market value and
specific ‘insurance-relevant’ risks,
                                                              number of companies
and losses are already reported
to be flowing through to the             – Market value – Number of companies
D&O market. “Depending on                70%
the type of insurance for each           60%
stage of their lifecycle, inherent       50%
exposures could potentially              40%
stem from mismanagement,                 30%
fraud or intentional and material        20%
misrepresentation, inaccurate or         10%
inadequate financial information or       0%
violations of SEC rules or disclosure          2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021

duties,” explains Lydia Miller,                                                                                                                                 Source: Bloomberg
Global Underwriting and Product
Analyst at AGCS. “In addition, a
failure to finalize the transaction
                                                              Industries to experience uptick in
within the two-year period, insider
trading during the time a SPAC goes                           SPAC activity
public, a wrong selection of a target
to acquire or the lack of adequate       50%

due diligence in the target company      40%
could also come into play.”              30%

                                         20%
Post-merger the risk of the go-forward
company to perform as expected or        10%

failure to comply with the new duties    0%
                                                 Technology

                                                                                                    entertainment
                                                               Financial
                                                                services

                                                                           Healthcare

                                                                                         Business
                                                                                         services

                                                                                                          Leisure/
                                                                                                     hospitality or

                                                                                                                       Energy

                                                                                                                                Industrials and
                                                                                                                                manufacturing

                                                                                                                                                  Real estate

                                                                                                                                                                    Consumer

                                                                                                                                                                               Insurance

of being a publicly-listed company
are among the other emerging risks
on the SPACs radar that need to
be considered.
                                                                                                                      Source: Katten 2021 SPAC survey report

                                                                                                                                                                                            5
Directors and officers (D&O) insurance insights 2022 - Allianz ...
D&O INSURANCE INSIGHTS 2022

3. Market, climate change
and digital issues for financial
services companies
                              The financial services industry           As such, an increasing number of
                              continues to face multiple challenges     financial institutions have already
                              in terms of risk management. On           committed to aligning their lending
                              the financial side, markets are likely    and investing portfolios to this

More and                      to become more volatile with the
                              increased risk of asset bubbles and
                                                                        goal, while management tools that
                                                                        allow for active measurement of the
more banks                    inflation rising in different parts of
                              the world.
                                                                        exposure are being developed.

and insurers                  The general assumption is that
                                                                        Recent natural catastrophe events
                                                                        such as wildfires in Southern Europe
are expected                  monetary policies will harden, while
                              there remains uncertainty regarding
                                                                        and California and floods in Germany,
                                                                        the US and China have emphasized
to assign                     economic recovery levels in view of       the importance for regulators to focus

individual                    rising energy prices and supply chain
                              disruptions. The impact of China, with
                                                                        on climate change and the impact on
                                                                        credit risk (including stress tests).

responsibility                its struggling real estate market and
                              its regulatory interventions in sectors   More and more banks and insurers

for overseeing                such as technology, should not be
                              underestimated.
                                                                        are expected to assign individual
                                                                        responsibility for overseeing financial
financial                     At the same time, important
                                                                        risks arising from climate change,
                                                                        while investors are paying closer
risks arising                 international initiatives are underway
                              to develop more sustainable, resilient
                                                                        attention to the proper disclosure of
                                                                        the risk that it poses for the company
from climate                  and circular economies in response        or financial instrument they invest

change
                              to the challenges posed by climate        in, as demonstrated by a number of
                              change and global warming.                recent actions (see column, page 7).

                              The financial services sector has a       Regulatory change to suitability
                              critical role to play in achieving this   rules are on their way to ensure
                              aim by helping to ensure that capital     that investors’ ESG preferences are
                              flows toward sustainable projects         taken into consideration during the
                              and assets with consideration of          investment advice process.
                              environmental, social and governance
                              (ESG) factors, according to David
                              Van den Berghe, Global Head of
                              Financial Institutions at AGCS.

6
Directors and officers (D&O) insurance insights 2022 - Allianz ...
D&O INSURANCE INSIGHTS 2022

                                                         For firms’ senior management
                                                         this requires them to maintain an
                                                                                                           Pressure
                                                         active role in steering the ICT risk              increasing
                                                         management framework. This
                                                         encompasses the assignment of
                                                                                                           to disclose
                                                         clear roles and responsibilities                  climate risk
                                                         for all ICT-related functions, a
                                                         continuous engagement in the                      Climate change litigation
                                                         control of the monitoring of the                  is beginning to target
                                                         ICT risk management, as well as                   financial institutions. Cases
“Therefore firms will face a number                      an appropriate allocating of ICT                  have tended to focus on
of challenges, from obtaining                            investments and trainings.                        the nature of investments,
clients’ ESG preferences to reducing                                                                       although there is a growing
regulatory risk including the risk of                    All these aforementioned                          use of litigation seeking to
‘greenwashing’, where companies                          developments create additional                    drive behavioral shifts and
make false or misleading ESG claims,                     challenges for the risk professional. If          force disclosure debate.
all of which could impact D&Os,” says                    ICT risks are not properly managed                In November 2020, a case
Van den Berghe. “Businesses should                       the company may experience service                was settled involving a
ensure they have clear processes in                      disruptions which could result in                 $57bn superannuation
place for managing and disclosing the                    increased operating expenses                      fund in Australia, Rest 2 .
impact to their business of ESG risks                    resulting from a variety of causes                The claimant alleged
such as climate change.”                                 including customer redress, additional            Rest’s failure to disclose
                                                         consultancy costs, loss of income and             and address climate risk
Meanwhile, following the Covid-19                        regulatory fines.                                 breached legislation. The
pandemic, digitalization has further                                                                       fund committed to a raft
accelerated – by as much as seven                        Brand reputation would also likely                of new disclosure and
years according to a McKinsey                            be affected as well, particularly if the          climate change-related
survey1 – and information and                            company has been targeted by cyber                initiatives in response.
communications technology (ICT)                          criminals as a result, which could                In July 2020, a claim 3
plays an indispensable role in the                       ultimately impact on the company’s                lodged in the Federal
operation of the daily functions of                      stock price.                                      Court of Australia alleged
financial institutions. Digitalization                                                                     Australian investors trading
covers not only payments, but                            “AGCS regularly engages in open                   in Government bonds
also lending, securities clearing                        dialogues with the banking, insurance             would face “material risks”
and settlement, trading, insurance                       and asset management segments to                  because of the Australian
underwriting, claims management                          discuss risk trends and challenges,”              Government’s response
and back office operations.                              says Van den Berghe. “We are                      to climate change and
                                                         investing heavily in our network and              this was not disclosed
Finance has not only become largely                      expertise, both on the underwriting,              to investors. This case is
digital, but digitalization has also                     claims and operations side, so we can             ongoing.
deepened interconnections and                            best respond to customers’ needs and
dependencies within the sector and                       contribute to a better management of
with third-party infrastructure and                      risks in a complex environment that
service providers.                                       constantly evolves.”

1 McKinsey & Company, How Covid-19 has pushed companies over the technology tipping point – and
  transformed business forever, October 2020
2 Clifford Chance, Climate Change test case settles: $57bn Australian super fund responds to pressure on
  climate change policy                                                                                                               7
3 MinterEllisonRuddWatts, 2021 Litigation Forecast – Climate change litigation: New risks for companies
  and directors
Directors and officers (D&O) insurance insights 2022 - Allianz ...
D&O INSURANCE INSIGHTS 2022

                    4. Heightened US
                    litigation risk for
                    non-US domiciled
                    companies
                    A surge of new lawsuit filings, the recent           Among the reasons given in the past by US
                    openness of certain courts to extending long-        courts to dismiss a derivative suit against a
                    arm jurisdiction, and a possibly record-breaking     non-US company was the failure of plaintiffs
                    settlement announced in October 2021, point          to comply with a requirement in the subject
                    to heightened US litigation risk for directors and   company’s home jurisdiction – that the
                    officers of non-US domiciled companies.              plaintiffs first apply for, and be granted, leave
                                                                         from a local court before pursuing a derivative
                    In recent years shareholders increasingly have       claim. Such requirements typically don’t exist
                    sought to avail themselves of US courts to bring     in the US. However, in a series of decisions over
                    derivative actions on behalf of non-US domiciled     the past four years, courts in New York have
                    corporations. In particular, since early 2020, a     ruled that such requirements are procedural
                    group of plaintiffs’ firms has brought around        rather than substantive.
                    a dozen derivative lawsuits in New York State
                    courts on behalf of shareholders of non-US           While courts may be required to apply the
                    companies seeking to hold directors and officers     substantive law of the place where a company
                    legally and financially accountable for various      is incorporated when adjudicating the duties
                    breaches of duty to the corporations they have       and liabilities of directors and officers, New
                    been engaged to serve.                               York courts have ruled that their ability to
                                                                         hear a dispute should not be constrained by
                    While not without precedent, such suits were         procedural rules inconsistent with New York
                    uncommon previously. Even when filed, derivative     law and practice. See, for example, Davis v.
                    suits brought on behalf of non-US companies          Scottish Re Grp. Ltd., (2017)1; Mason-Mahon v.
                    generally met resistance from US courts and were     Flint (2018) 2 .
                    dismissed on jurisdictional and other grounds.
                    However, certain recent court decisions make
                    clear that under the right circumstances, US
                    courts are willing to entertain such lawsuits.

8                   1 Justia US Law, Davis v. Scottish Re Group Ltd.
                    2 Justia US Law, Mason-Mahon v Flint
D&O INSURANCE INSIGHTS 2022

Litigating in the US, derivative plaintiffs may
obtain advantages not available should they
attempt to bring suit in the company’s home
country, not the least of which is possibly being
the right to bring suit at all. The US permits
                                                                            The consequences to
contingency fee arrangements for legal expense
but, with limited exception, does not permit the
                                                                            directors and officers
winning party to recover its litigation expense                             forced to defend
from the losing party. As a result, the financial
hurdles to bring suit in the US are significantly                           themselves in derivative
lower than in many other countries. In addition,
US courts (and juries) are considered more                                  litigation before US courts
plaintiff-friendly than courts in many other
jurisdictions around the world.
                                                                            can be severe
“The consequences to directors and officers                           This settlement followed the decision of a New
forced to defend themselves in derivative                             York intermediate court of appeals affirming
litigation before US courts can be severe,” says                      the rejection by the trial court of jurisdictional
David Ackerman, Global Claims Key Case                                challenges to bringing the suit in New York.
Management at AGCS. In what may turn out to                           Of note, the court found that it had personal
be a record-setting settlement for a US derivative                    jurisdiction over the defendants due to their
lawsuit, in October of this year defendants                           significant activities in New York, including
agreed to pay a minimum of US$300mn3 to                               conduct of an IPO of Renren shares on the New
settle litigation brought in New York State court                     York Stock Exchange and the engagement of New
by shareholders of Renren, a social media                             York legal and banking advisors for this purpose,
corporation based in China, and incorporated                          as well as the repeated consent of Renren to
in the Cayman Islands, after allegations of                           be governed by New York law in regard to
corporate misconduct.                                                 contractual matters. See In re Renren, Inc. (2021)4 .

3 Financial Times, US-listed Chinese group Renren settles investor complaint for $300mn, October 10, 2021                                    9
4 Reid Collins, In re Renren Inc. Derivative Litigation, Index No. 653594/2018
D&O INSURANCE INSIGHTS 2022

                    5. Increased risk of
                    shareholder derivative
                    suits under Caremark
                    In 1996, in In re Caremark Int’l1 , the Delaware                      Either of these theories required a “showing that
                    Chancery Court in the US set the standards for                        the directors knew they were not discharging
                    claims against corporate directors for lack of                        their fiduciary obligations.”, as in Stone v Ritter,
                    board oversight.                                                      2006. 3, which saw a group of shareholders
                                                                                          bring a derivative suit against AmSouth bank’s
                    In a derivative action, shareholders of health                        directors for failure to engage in proper
                    services company Caremark International                               oversight of its Bank Secrecy Act and anti-
                    Inc., alleged that the company’s directors, in                        money laundering policies and procedures,
                    neglecting to effect sufficient internal control                      after it had been fined $50mn for failing to
                    systems, had breached their duty of care.                             report suspicious financial activity. Applying the
                                                                                          Caremark standard, the Delaware Chancery
                    It was because of this, the civil action alleged,                     Court dismissed the shareholders’ complaint.
                    that Caremark employees were able to commit
                    criminal offenses that resulted in the company                        Very few cases have survived Motions to
                    having to make reimbursements to various                              Dismiss Caremark claims; therefore, they have
                    private and public parties of more than $250mn2 .                     had a low settlement value. Those that have
                                                                                          survived have settled for increasingly higher
                    The court determined that boards of directors                         amounts however. For example, the Wells
                    have a duty to ensure that the corporation’s                          Fargo shareholder derivative suit4 , filed in
                    reporting system is adequate to assure that                           response to bank employees creating millions
                    appropriate information comes to the board                            of unauthorized customer accounts, settled for
                    in a timely manner. Failure to do so can mean                         $240mn after denial of the Motion to Dismiss
                    that individual directors have liability for                          (based on $2.5bn in alleged loss); the McKesson
                    corporate failures.                                                   derivative litigation5, which alleged the board
                                                                                          had breached its fiduciary duties with respect to
                    Until recently there was a very high standard                         oversight of its opioid drug operations, settled
                    for shareholders to prove that a board had                            for $175mn after denial of the Motion to Dismiss
                    breached this duty. They had to either show that:                     (based on $3.95bn in alleged loss).

                    1. the directors utterly failed to implement
                       any reporting or information systems or
                       controls or:

                    2. having implemented such a system or
                       controls, they consciously failed to monitor or
                       oversee its operations.

                    1 Case Briefs, In re Caremark International Inc. Derivative Litigation
                    2 Justia US Law, In Re Caremark Intern. Inc. Deriv. Lit.
                    3 Quimbee, Stone v. Ritter Delaware Supreme Court, 2006 WL 302558 , 911 A.2d 362 (Del. 2006)
                    4 The D&O Diary, Massive settlement in Wells Fargo bogus account scandal derivative suit, March 3, 2019
10                  5 The D&O Diary, McKesson opioid-related derivative suit settles for $175mn, February 6, 2020
                    6 Lexis Nexis, Marchand v. Barnhill - 212 A.3d 805 (Del. 2019)
D&O INSURANCE INSIGHTS 2022

The very high standard for Caremark claims was         Following the denial of the Motion to Dismiss,
apparently lowered in 2019 when the Delaware           the Bluebell shareholder derivative suit settled
Supreme Court decided Marchand v. Barnhill6 .          for $60mn (based on $453mn in alleged loss).
In this case, shareholders of food company Blue        This settlement was 13% of the alleged loss as
Bell brought a derivative claim under Caremark         opposed to 4.4% for McKesson and 6.9% for
after a listeria outbreak resulted in the death of     Wells Fargo.
three customers, a nationwide recall, a liquidity
crisis and emergency credit facility that diluted      “Since the Marchand decision, an increasing
shareholders’ control of the company.                  number of Caremark claims are surviving
                                                       Motions to Dismiss, potentially leading to
The Marchand court focused on the fact that            greater exposure for individual corporate
Blue Bell manufactured only one product, ice           directors,” says Angela Sivilli, Global
cream, and therefore food safety was mission           Practice Group Leader, Commercial
critical to the corporation. Despite this, Blue Bell   Management Liability and Financial
had no board committee to address food safety,         Institutions, Chief Claims Office at AGCS.
had no regular discussion of safety issues, and        “Board members must accordingly re-
apparently did not receive certain negative            examine whether there is sufficient Side A
reports about food safety.                             cover (which covers liabilities incurred by an
                                                       individual in their capacity as a director or
                                                       officer) in their D&O insurance program.”

                                                                                                                           11
D&O INSURANCE INSIGHTS 2022

                            Market dynamics
                            the state of the D&O
                            insurance sector
                            Billions of dollars of premiums are collected                      Therefore, the overall market hardening trend
                            annually for D&O insurance but the profitability                   has continued through past quarters, with
                            of the sector has suffered in previous years                       generally higher premiums, tighter terms and
                            because of increasing competition, the growing                     selective deployment of capacity for both
Find out more about         number of lawsuits and rising claims frequency                     primary and excess layers.
the virtual captive         and severity. Underwriting results have been
market www.
agcs.allianz.com/           negative in many markets around the world,                         Global insurance pricing for D&O has previously
news-and-insights/          as event-driven litigation, collective redress                     showed double-digits increase in all key
expert-risk-
articles/virtual-
                            developments, regulatory investigations and                        markets in 2021, according to third party data.
captives.html               higher defense costs have taken their toll.                        However, as the year has progressed it has been
                                                                                               reported that there was some deceleration in
                                                                                               the premium increases compared to the “Covid”
                                                                                               year 2020.

1 Marsh Global Insurance Markets: Pricing increases moderate in second quarter, July 2021

            D&O Insurance Structure
The structure of a D&O insurance policy depends on which of three insuring agreements are purchased (ABC policies are
generally chosen, as these are standard form policies for publicly listed companies; for private or non-profit companies,
only AB policies would be useful).

 Cover           Description                                                         Who is the insured?          What is at risk?
 Side A          Protects assets of individual directors and                         Individual officer           His/her personal assets
                 officers for claims where the company
                 is not legally or financially able to fund
                 indemnification
 Side B          Reimburses public or private company to                             Company                      Its corporate assets
                 the extent that it grants indemnification
                 and advances legal fees on behalf of
                 directors/officers
 Side C          Extends cover for public company (the entity,                       Company                      Its corporate assets
                 not individuals) for securities claims only

12
D&O INSURANCE INSIGHTS 2022

Regionally there are some important differences
to observe. Financial and professional lines
rates increased 25% in the US, driven by D&O
liability and cyber pricing, according to Marsh1 ,
whereas financial and professional lines in the
UK saw pricing up by 57%, largely due to D&O.
Continental Europe, Latin America and Asia
followed by respectively 20%, 22% and 24%.

US-listed companies (including Initial Public
offerings), as well as pharma, tech, life science
and retail organizations are still experiencing
considerable rate pressure and retention levels
for side B and C coverages.

From an insurance-purchasing perspective,
capacity levels are still not at the soft market
levels seen prior to 2018, despite the fact that a
number of new insurers have entered the D&O
market. This means there is still an imbalance
between supply and demand and many
companies would like to purchase more limits
than the industry can currently offer.

The hard market conditions are prompting
more discussion around alternative risk transfer
and finance and companies are increasingly
exploring solutions such as the utilization
of (virtual) captives for the side C portion of
the coverage.
Contacts
For more information contact your local Allianz Global Corporate & Specialty Communications team.

Asia Pacific                                                        Central and Eastern Europe
Wendy Koh                                                           Daniel Aschoff
wendy.koh@allianz.com                                               daniel.aschoff@allianz.com
+65 6395 3796                                                       +49 89 3800 18900

Ibero/LatAm                                                         Mediterranean/Africa
Camila Corsini                                                      Florence Claret
camila.corsini@allianz.com                                          florence.claret@allianz.com
+55 11 3527 0235                                                    +33 158 858863

North America                                                       Lesiba Sethoga
Emil Janssens                                                       lesiba.sethoga@allianz.com
emil.janssens@agcs.allianz.com                                      +27 11 214 7948
+1 212 553 1287

UK, Middle East, Nordics                                            Global
Ailsa Sayers                                                        Hugo Kidston
ailsa.sayers@allianz.com                                            hugo.kidston@allianz.com
+44 20 3451 3391                                                    +44 203 451 3891

                                                                    Heidi Polke‑Markmann
                                                                    heidi.polke@allianz.com
                                                                    +49 89 3800 14303

For more information contact agcs.communication@allianz.com

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Thank you to Joana Moniz for her contribution to this report.
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December 2021
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