Tag Archives: directors & officers

How to Deliver Tough Message on D&O

Relationships are the key to success in the insurance industry. Trust and respect go a long way when it’s time to deliver challenging news. For example, the firming of the directors and officers (D&O) market has led to tough conversations about increasing rates.

The best way to handle these conversations is to make sure your communication skills are in excellent shape – and that means both what you say and how well you listen.

How to announce a price increase to clients: Plan ahead and be clear

Preparation is key. Take the time to identify potential high-risk accounts early, with 90-day reviews. Our clients aren’t happy to hear their rates are going up, but it helps to have conversations early to explain the reasons for rate increases. With pricing down 50% over the last 10 years, a market adjustment has been due for some time. In fact, price increases in the current D&O market are a good sign for the industry’s long-term health.

Be sure to take the time to explain the main drivers for rate increases, which are being experienced by public companies, private companies and financial institutions, including large private equity firms and large banks:

  • The number of claims has risen.
  • Capacity has decreased with the departure of carriers.
  • Defense costs have risen, in part because of coverage expansions and increased loss costs.

Securities claims on a yearly basis are up, and, because there are fewer public companies now than there were 10 years ago, the chances of attracting securities litigation is even greater. We owe it to our clients to be open about the realities of the market and their impact on rates. Bear in mind: How we announce a price increase to clients and brokers will have a lasting impact on our relationships going forward. The markets that handle this communication effectively will be the ones that succeed in the long run.

See also: How to Be Disruptive in Emerging Markets  

Be transparent about how underwriters evaluate a risk

Underwriters base their risk evaluations on data. Reminding clients of the factors that contribute to their increased rates can help alleviate some of their distress. These factors include:

  • Financial strength
  • The class of business
  • Strength of the leadership
  • Business track record
  • M&A activity
  • Organizational structure
  • Claims history

While it’s important to be straightforward in explaining the facts underlying a risk evaluation, it’s just as important to demonstrate your understanding of your client’s position. We view our relationships with clients and brokers as partnerships, and we want to deal with people fairly and honestly and communicate our position.

Be effectively empathetic – and actively listen

It takes effort to be effectively empathetic. Saying, “I know this isn’t what you want to hear,” is not enough. Consider these steps to validate the reactions you will receive when it’s time to share not-so-good news:

  • Put aside your viewpoint
  • Validate the other person’s perspective
  • Examine your attitude
  • Ask what the other person would do
  • Listen

Be prepared to respond to objections

It’s only natural that bad news will meet resistance. Here’s how we suggest keeping the conversation on track.

  • Objection: Why is my rate increasing in the absence of a claim?
    Response: Rate increases depend on risk and current pricing, which is affected by increases in regulatory costs for financial institutions, in defense costs and in claim frequency.
  • Objection: I may have to go to RFP if rates increase.
    Response: We understand your position and wanted to give you an update early for our due diligence and your ability to market the risk with other carriers.
  • Objection: This account was written new last year. Why the increase this year?
    Response: Accounts are evaluated annually, and defense and regulatory costs increased over the past year.
  • Objection: Why are both the underlying and the excess rates increasing?
    Response: We know this news is hard to hear. The market is adjusting after a lengthy period of low rates. We’ve seen more price compressions for excess than for primary, which has created even more need for excess rate increases.

In our careers, we’ve come to anticipate that the marketplace will continue to change. It’s essential to keep your skills refined for when the time comes to have tough conversations.

Handling Transition to a Public Company

In any given year, many private companies are evaluating the potential transition from private to public ownership. An initial public offering (IPO) comes with a myriad of financial and operational concerns, ranging from public disclosure requirements to additional regulatory/compliance infrastructure, to confidentiality and trade secret concerns. One potentially under-appreciated area for consideration, for those companies considering an IPO, is directors’ and officers’ liability insurance (D&O). Recent claims trends and the March 2018 U.S. Supreme Court’s decision in Cyan emphasize the need to approach the D&O insurance topic with great diligence, and to obtain maximum protection for a company and its key executives. In our experience at Aon, key D&O topics for careful review include the following:

Beginning at the “all hands” initial kick-off meeting and through the road show, company executives are making decisions and representations that could create liability exposures. The private company D&O policy, which almost certainly excludes public securities claims, should not be so restrictive as to exclude pre-IPO preparatory and “road show” activity. Additionally, pre-IPO private company policies should contain carve-out language for “failure to launch” claims. The transition to a public company will also require clear policy language that determines how pre- and post-IPO allegations are addressed. Detailed negotiations of the “tail coverage” and “prior acts” coverage are critical to providing the appropriate protections for both the respective former private company and new public company boards and executives. IPO candidates should confirm that their current private company D&O program, with regard to terms, structure and limits, provides comprehensive pre-IPO coverage to provide a seamless transition to public company status.

Coverage Terms

Ensuring breadth of policy terms is perhaps the most critical component to a public company D&O insurance program placement. Maximizing coverage in the event of a claim is rooted in contract certainty and broadest and best-in-class terms and conditions. Unfortunately, inexperienced D&O practitioners can lead to debilitating coverage gaps and exclusions. It takes an IPO-experienced and detail-oriented brokerage tactician to obtain critical coverage enhancements. Coverage topics such as straddle claims, definition of loss and E&O exclusions can be the difference between maximizing policy proceeds and an outright claim denial. The D&O program coverage negotiations are multifaceted – the negotiations are not limited to the primary layer of insurance but, rather, involve numerous layers of negotiations with your excess insurers, including importantly your Side A insurers. IPO candidates should partner with detail-focused D&O professionals (which can include both brokers and outside counsel), to obtain maximum coverage.

See also: Why Small Firms Need Cyber Coverage  

Policy Structure

Public company D&O insurance can be markedly different in structure than private company D&O insurance. Two very common examples include the separation of limits (i.e., the D&O is no longer tied to other management liability coverages, such as employment practices and crime) and the addition of dedicated Side A difference in conditions (“DIC”) insurance. Additional structural considerations, such as entity investigative coverage, the inclusion of DIC limits within the “A/B/C” tower and the decision to run-off prior coverage or maintain continuity of a program are all structural items of critical importance to review prior to an IPO. IPO candidates should weigh the pros/cons of each approach and select a program structure that aligns with their unique risk factors and corporate purchasing philosophy.

Limits

Limits selection is not a “one-size-fits-all” question and can be influenced by various factors, including: expected offering size/market cap, industry risk factors, historical claims activity, merger/acquisition exposure, bankruptcy risk, a company’s risk retention capacity, limits availability relative to budget and board directives. Aon has several proprietary tools to assist clients in making informed decisions around the appropriate limits to purchase at the time of your offering.

Pricing

Undoubtedly, many insureds experience sticker shock when contemplating the potential cost of a post-IPO D&O program. This is particularly true in the post-Cyan world as D&O insurers consider separate state court retentions and pricing commensurate with increased ’33 Act state court exposures. This environment has led to 2018 D&O pricing (for IPOs) that, in some cases, is more than twice comparable deals in 2018. IPO candidates should prepare senior management and the board to anticipate a meaningful change as compared with the private company program with regard to D&O premium. Candidates should also work closely with their broker to align strategies to maximize the return on this premium. These strategies can include meetings with key national decision-makers at leading D&O insurers, risk/retention analyses regarding potential retention levels and competition via access to national and international D&O insurers. Partnering with a broker that has a proven ability to “make a market” for competitive D&O pricing is crucial to maximizing the marketing opportunity and obtaining competitive pricing results.

International

While this topic is germane to both public and private companies, the IPO process can be a catalyst to review broad D&O topics, including the need for locally admitted policies. In many countries, non-admitted insurance is problematic and would not be permitted to respond in the event of a claim in such a country. Particularly for D&O insurance, which is intended to help protect individuals’ personal assets, the certainty of available coverage within problematic countries is critical. All companies, particularly IPO candidates, should consider their international exposures and implement locally admitted policies as needed.

See also: The Fallacy About International Claims  

An IPO is an exciting but challenging time, for corporate issuers and their leaders. Partnership with subject matter leaders across several disciplines, such as accounting, finance, legal and insurance, can help a company execute a successful transition to public equity.

All descriptions, summaries or highlights of coverage are for general informational purposes only and do not amend, alter or modify the actual terms or conditions of any insurance policy. Coverage is governed only by the terms and conditions of the relevant policy. If you have questions about your specific coverage, or are interested in obtaining coverage, please contact your broker.