Directors & officers insurance, or “D&O,” is a type of management liability insurance. Other coverages within the management liability category of business insurance include employment practices liability insurance (EPLI) and fiduciary liability insurance. Often, they can all be packaged together on the same policy. Here’s what you need to know about D&O.
Why do I need directors & officers insurance?
Many companies who look for D&O coverage do so because they’re going through an institutional round of funding. What they may not realize is that the policy they’re buying has more utility than just letting you cross an item off your term sheet to-do list.
The VC wants you to have this policy in place for two main reasons. First, if they are going to take an ownership stake and put someone on your board, they’re going to want to be sure that their employee is protected from legal liability. Second, if a dispute develops between you and them, the VC wants to know that you have the capital required to absorb the legal costs without mortgaging the future of the entire company.
So why do you need it? The same reasons! If you are going to act as an officer or board member, you’re going to have a fiduciary duty to your investors. This means they can hold you liable if they feel you breached that duty. These are also people who initially made the decision to invest based on information you gave them. If they feel you made some sort of misrepresentation at that time, they have the right to take you to court. And what about government agencies like the SEC…are you prepared for a complaint from a current, past or prospective investor triggering a regulatory investigation?
Put simply, if you’re looking for investors you should also be looking for D&O insurance!
D&O insurance can be a critical protection even if you don’t have investors. Competitors can make allegations such as unfair trade practices or tortious interference that aren’t covered by a general liability policy. Fraud is an extremely common accusation from vendors and other counterparties but, as long as the allegation is unfounded, the right D&O policy will help you out.
And if you’re still not convinced, here’s a bottom line for you: the cost of not having D&O coverage can literally be a killer for a startup. One survey conducted by Chubb estimated that, between 2012 and 2015, over a quarter of all private companies experienced a D&O-type loss. The average total cost for companies without D&O insurance was $394,000 following these types of losses. The highest reported loss clocked in at over $17,000,000.
What is it?
D&O insurance protects the company and its executives from certain claims made against them. The insurance will pay for the defense against certain lawsuits as well as any subsequent judgment or settlement action brought against an insured.
Historically, D&O policies were really just designed to protect the personal assets of those key individuals but the scope has since expanded. Companies can now indemnify their executives against covered claims and then turn to their D&O policy for reimbursement. If the company itself is named in a suit, the policy would defend the corporate entity in addition to its leadership.
Most of the insurers we work with will extend the coverage to employees and volunteers outside the board of directors as well. These include external advisors, scientific advisory boards and employed lawyers.
The types of claims that are covered involve an individual’s actions and decisions (or failures to act/decide) in his or her capacity as a leader of the company. This can include allegations of breach of fiduciary duty, mismanagement of shareholder voting procedures, unfair trade practices, misrepresentation, securities violations in connection with private placements, and failure to comply with regulations/laws (to name a few).
Coverage can also be expanded to offer additional limits to protect execs when the company is insolvent and can’t provide indemnification. These additional limits can be vital since companies that are in financial trouble are much more likely to be named in a D&O suit. It can be a vicious cycle. The coverage enhancement ensures that, even if the coffers are dry and the policy has been used up, there will be a safety net available to catch individuals who are still the target of a suit but can’t be protected by the company.
Other enhancements include coverage for the costs of investigating a derivative demand claim (when your shareholders act on behalf of the company and sue you) or the legal defense costs of a dilution suit from a former exec.
Fraud is a frequent allegation made as part of commercial lawsuits. Problematically, fraudulent acts are not covered by insurance. But here’s the key: get the right D&O policy and the carrier will pay to defend you against that allegation until it’s proven true. Assuming the fraud claim is unfounded, a well-written D&O policy will pay to get that part of the suit knocked out.
How do I protect my company and myself?
Want to read more on the subject? Check out our blog posts on directors & officers insurance.
Read about other types of coverage