Will soft pricing in the directors and officers insurance market continue in light of a second-quarter uptick in 2010 securities suits reported recently?

Michael Rice, chief executive officer of Aon Financial Services Group in Denver, Colo., is skeptical. "One quarter does not necessarily change anything. It would have to be more of a trend--multiple quarters, a full-year type thing, [and] quite frankly, if the increase in frequency in the second quarter doesn't continue into Q3 and Q4, it probably won't impact pricing negatively," he.

"The price of D&O insurance today, without even adjusting for inflation, is back at the levels it was at in 2000," he reported. "So this is a really good and relatively inexpensive time to be buying D&O insurance. Unless frequency goes up, these good times are here to stay."

A lawyer and a carrier expert, however, foresee a general uptick in D&O claims, building on a second-quarter surge in securities lawsuit filings, which was largely headline-specific.

The Deepwater Horizon oil spill, for example, drove an 82 percent jump in new suit filings against energy companies, according to New York-based Advisen, which reported that those suits were a primary driver of a 19 percent increase in securities suits across all industries.

Jim Blinn, an Advisen principal and moderator of a webinar showcasing results of the recent report, asked experts whether a different trend underlying the latest numbers--a low level of credit crisis suits in the quarter (just seven, with five naming Goldman Sachs in the wake of a suit filed by the U.S. Securities and Exchange Commission)--heralds good news to come for D&O insurance underwriters. "Or is there potentially a new catalyst" that might push suit levels up again, he asked.

Carol Zacharias, senior vice president and deputy general counsel at ACE North America in New York, pointed to an improving economy as one possible driver of securities suits fueling D&O claims.

"As we slowly climb out of the economic downturn, companies will necessarily engage in certain kinds activities that do present some liability exposures," she said, listing the following:

  • A Bad news:
    "Some companies are going to have to disclose adverse financial results as they move forward, [and] some may go into bankruptcy," according to Ms. Zacharias.

"Shareholders will ask if this was done and disclosed in a timely fashion," she said, adding that bankruptcy exposes financially challenged companies to many more litigants--new boards, creditors and vendors, for example.

  • A M&A activity:
    "Other companies will move into profit mode, and their stock values will go up," she said, noting that as they do, these firms will be looking at consolidations, initial public offerings, takeovers and sales of assets, noting that "those are all classical stimulants for litigation."

  • A Regulatory activism and new laws:
    "Regulators are under more pressure. Regulators have responded," she said, predicting that ramped-up SEC enforcement activities will continue, with the newly enacted Dodd-Frank Act providing some new tools to attack securities law violators.

  • A Increasing enforcement of old laws:
    "We are definitely experiencing an increase in the enforcement of old laws," Ms. Zacharias said, pointing to the Foreign Corrupt Practices Act of 1977 as a classic example.

  • The FCPA is a federal law containing anti-bribery and accounting requirements. The anti-bribery provisions make it unlawful to pay a foreign official for the purpose of obtaining or retaining business, and firms are exposed to criminal and civil penalties for payments, or promises of payments, to foreign officials that could be considered bribes.

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