XL Catlin creates D&O endorsement to address Yates Memorandum

XL Catlin’s professional lines team has amended its directors & officers (D&O) coverage in response to recent changes in corporate wrongdoing investigations in the US.

The Bermuda-based team will now address US federal law enforcement’s increasing investigations of corporate misconduct allegations against directors and officers of private and public companies.

XL Catlin’s D&O corporate misconduct investigations endorsement, developed for its all lines insurance excess insurance policy, has been created to clarify, confirm and expand the broad coverage offered under a standard lead side A D&O policy.

According to Matthew Irvine, XL Catlin’s Bermuda professional lines chief underwriting officer: “Since former US acting Attorney General Sally Yates issued what is commonly known as the Yates Memorandum in September 2015 to all Assistant US Attorneys and other key agencies setting forth the US federal government’s focus on individual accountability for corporate wrongdoing and recently with several highly publicised D&O criminal trials, there has been a growing need for directors and officers to review the adequacy of their insurance and indemnification protection. This endorsement provides enhanced coverage for alleged corporate wrongdoing investigations and proceedings.”

The endorsement features include a $1 million reinstated limit for loss resulting from a criminal misconduct investigation or proceeding, incurred after other applicable limits are exhausted, coverage if the insured fails to provide testimony or produce documents based on his/her Fifth Amendment privilege or a requirement in a statute, rule or regulation to maintain confidentiality or concerning the obstruction of a criminal investigation, coverage for defence cost in a criminal proceeding, even if the conduct exclusion applies and coverage of fines or penalties if issued for non-intentional wrongdoing.

In addition. the insurability of fines or penalties covered under the policy shall be determined under the internal laws of England and Wales or, if more favourable to the insured, under any other applicable jurisdiction including without limitation the jurisdiction in which the parent company, the insured, the insurer, the policy or the claim is located.

Patrick Tannock, who leads XL Catlin’s Bermuda insurance operations, commented: “At XL Catlin we realise that the risk landscape is constantly changing and therefore we remain focused on developing innovative solutions to address the rapidly evolving and emerging needs of existing and potential clients. This new offering is another example of this.”