Board Protection: Individual Liability Insurance for Independent Directors

In the wake of recent corporate governance scandals, independent directors of public companies face increased levels of scrutiny and heightened prospects for the risk of personal liability. Recent court decisions have criticized directors of public and private companies for insufficient attention to their duties. The Sarbanes-Oxley Act of 2002 (S-O) and the proposed corporate governance reforms of the New York Stock Exchange (NYSE) and the Nasdaq Stock Market (Nasdaq) call for decisions about critical matters such as accounting policies and executive compensation to be made solely by directors who meet rigorous independence standards.

In response to the ongoing tide of corporate governance reforms as well as the rising numbers of shareholder lawsuits and escalating settlement costs, insurance companies have sharply increased premiums for traditional directors' and officers' liability insurance (D&O insurance), which typically insures officers and directors as well as the company itself. At the same time, insurers have narrowed the scope of coverage of D&O insurance policies in terms of both dollar limits and the types of insured events. Furthermore, carriers have considered policy rescission on the grounds of misstatements in applications. There is also concern as to the allocation of policy proceeds in bankruptcy.