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2 2 What is Management Liability Insurance? Directors & Officers of public and privately-held companies operate in an extremely complex environment in which their personal assets are at stake if they are sued as a result of their corporate duties. Click each item below to be directed to the corresponding details in this document.

3 3 DIRECTORS & OFFICERS (D&O) COVERAGE The term is a bit of a misnomer as coverage extends to the Directors, Officers, the Company itself, and may extend to non- D&O employees. Policies cover Claims brought against directors, officers or the company due to alleged wrongful acts in their capacity as such. The policies provide Defense Costs for covered allegations as well as coverage for settlements and judgments against Insureds subject to the terms and conditions of the policy. EMPLOYMENT PRACTICES LIABILITY Coverage provided for Claims against Insureds (D&Os, Employees, and the Company) brought by employees or applicants for employment for employment related allegations. Third Party EPL is fairly standard in the marketplace for Claims brought by non-employees / applicants alleging discrimination or sexual harassment. FIDUCIARY LIABILITY Coverage provided for Claims against Insureds (Trustees of the plan, Employees, and the Company) alleging wrongful acts against Insureds related to their liability in sponsoring such plans Coverage extends to Claims against employees of the company and the company arising out of administration of the plans

4 4 extended to non-fiduciaries providing those services to participants in the plans. CRIME Non-liability policies that provide a broad scope of coverage including reimbursement of the Insured s funds due to Employee Theft, Computer Crime, Forgery and other covered events. The policies can be extended to include Client Coverage as well as coverage for the employee benefit plans (ERISA bond required by the government). May include coverage for growing social engineering risks as well. KIDNAP AND RANSOM Coverage for risks related to kidnap and ransom domestically or while on company travel.

5 5 Directors & Officers Liability D&O CLAIMS EXAMPLES Family Shareholder Claim After the death of a part owner of a company and his shares were bequeathed to his children, those children/shareholders noticed that their share of the profits was drastically reduced from what their father was receiving while he was still alive. The children alleged breach of fiduciary duty, conspiracy and fraud against the D&Os. Specifically, they alleged that once the D&Os were no longer under the watchful eye of their father, they allegedly began to drain the profits of the company through self-dealing, large personal purchases and other unscrupulous activities. Defense and settlement exceeded $500k.

6 6 M&A Misrepresentation Prior to Sale A few months after purchasing an Insured Company and while the account was in Run-Off, the purchaser filed suit against the Company and its former D&Os for alleged fraud and conspiracy to commit fraud. The plaintiff alleged that prior to the sale, the defendants conspired to withhold crucial information regarding deficiencies in one of the Company's products causing the plaintiff to greatly overpay for the Company. Settlement and defense exceeded $2 million. Shareholder Suit Real Estate A shareholder who invested over $4 million in a land management company files a complaint against the company and its directors and officers alleging breach of fiduciary duty, conspiracy and fraud. In particular, it is alleged that the company (insured) failed to make quarterly distributions, wrongfully transferred funds out of certain properties and participated in sham transactions to the detriment of all shareholders.

7 7 Employment Practices Liability EPL CLAIMS & STATISTICS Manufacturer Settles Sexual Harassment Lawsuit Sexual Harassment Two former female employees who alleged they had been sexually harassed sued a manufacturer of housewares and assorted products. The former employees claimed they were offended by the comments contained in a radio broadcast played in the office by co-workers. According to the claimants, the co-workers continued to listen to the particular radio station despite repeated requests to turn it off or change the station. Although employers often allow personal radios to be played in the workplace, they might not expect claims of sexual harassment to arise from such a seemingly innocuous circumstance. Defense costs in this case were $325,000. FMLA & Disability Shortly after a company is told that an administrative assistant (paid well above market rates) is pregnant with complications, it hires another assistant and has the pregnant claimant train her. After the claimant trains the new employee, the company then fires the claimant. The claimant alleges that her employment was wrongfully terminated based on disability and pregnancy discrimination. She is left without insurance for her pregnancy and can't find a job that pays her anywhere

8 8 near what her former employer paid her. Settlement and defense approached $1 million. McIntre vs. Manhattan Ford, Lincoln-Mercury, Inc. Sexual Harassment A $6.6MM jury verdict was awarded to a woman for her claim that she was subjected to two and a half years of sexual harassment. The verdict was reduced to $3.7 million by the trial judge. The plaintiff presented evidence as to seventeen (17) separate incidents of harassment and alleged a daily barrage of abusive language. The trial court, in refusing to vacate the award of punitive damages in its entirety, stated that the amounts previously awarded to plaintiffs in Title VII cases have not been a sufficient deterrent in view of the significantly increasing number of employment claims. CLASS ACTION EPLI COMPLAINTS Race Discrimination: Shoney s, Inc. Class action suit brought by African Americans alleging they were denied employment or promotions between 1985 and The suit was settled for $105MM. Gender Discrimination and Sexual Harassment: Publix Supermarkets Class action suit by 150,000 past and present female employees at management and non-management levels who sued the company for keeping them in lowpaying jobs. The case settled for $81.5MM.

9 9 The Need for Fiduciary EMERGING ISSUE: LAWSUITS FOR EXCESSIVE FEES Law firms review and compare 401(k) plan fees with other 401(k) accounts with similar assets, and if the fees are higher they look to establish a class and sue. As noted in a 2016 Bloomberg Article: In the Fujitsu case Nichols Kaster compared the Fujitsu plan s fees with those of about 650 other plans with more than $1 billion in assets. Among 401(k)s with that much money, the average plan has annual costs that amount to 0.33 percent of assets, according to the complaint; it estimates that Fujitsu s costs were 0.88 and 0.90 percent for 2013 and That would have led to at least $7 million in excess fees that could have been socked away in employee nest eggs, the complaint stated. The differential in the fees is used to set the alleged damages, so basis point differences can add up quickly. These cases focused on larger plans initially, but in 2016 a suit was filed against a Minnesota body repair company with 100 participants and less than $10 M in assets (LaMetty s Collision case). As the plaintiff firms work through the big fish, they will seek out middle market and small companies.

10 10 FIDUCIARY CLAIMS EXAMPLES Sale of Stock from Officers to an ESOP Department of Labor brought suit against a company, its CEO, and its COO alleging that both the CEO and COO sold shares to the ESOP for a grossly inflated per share amount due to a fraudulent appraisal that used aggressive projections that were not in line with past performance and improper comparisons to much more successful companies. Defense exceeded the $1 million limit purchased. ERISA Violation The plan fiduciaries for a 401(k) Plan received a letter from DOL advising them that after an extensive investigation it appears that they have violated several provisions of ERISA. The DOL alleges the plan fiduciaries: did not forward amounts withheld from employees on a timely basis; improperly allowed the plan to make loans to shareholder-employees; make delinquent employer contributions to the plan; failed to make timely distributions to terminated employees; and filed Annual 5500 Reports which falsely indicated that the plan was funded in accordance with the minimum funding requirements of ERISA. Total defense costs and settlement exceeded $250,000.

11 11 Key Provisions Definition of Claim Please refer to policy for full definition, but typical language will include any written demand for monetary or non-monetary relief, regulatory proceedings/investigations, EEOC notices if Employment Practices Liability cover is purchased, and requests to waive or toll a statute of limitations be sure to know when to notice the carrier to avoid a late notice denial. When in doubt, contact your insurance consultant, broker, or agent for counsel as to what meets the definition of a claim. Claims Notice is typically required as soon as practicable after you become aware of the Claim, but in no case later than X amount of days past the policy period. It is important for the Insureds to be aware of the reporting requirements as late notices frequently create unexpected coverage issues. When in doubt, contact your insurance consultant, broker, or agent for counsel as to when to report a claim or potential claim. Duty to Defend vs Indemnity if the carrier has the Duty to Defend, they have the right to appoint counsel, but typically that means the carrier must pay 100% of Defense Costs, even for excluded allegations, as long as one allegation triggers coverage. Indemnity may give more flexibility regarding counsel, at the cost of losing that 100% Allocation of Defense Cost language. Note exceptions may exist even on Duty to Defend policies. Change in Control please advise your broker if there is a change in 50% or more of the ownership or control of the company. M&A please advise your broker if you plan on any acquisitions during the policy period, or if you are getting far along in the process of selling your business. Definition of Insured Entity Please remember the policy will typically cover the First Named Insured and Subsidiaries that the First Named Insured owns a majority of. Please bring JV s, entities under common ownership, or any other entity that may not fit that definition to your broker s attention. Wage and Hour under EPL Coverage Sections This coverage is only available from certain markets, and availability may be more limited in certain jurisdictions or for accounts with certain characteristics. The coverage is also often sub-limited, and other concerns may be more significant drivers for the purchase of EPL insurance.

12 12 Side A DIC Policy This is a policy that is available that will provide extra protection to the D&Os. We provided a quick summary below. Please advise if you would like an indication for this coverage. DIC = Difference in Conditions Policy only covers the Directors and Officers o No risk of sharing limits with Entity o Not an asset of the company Extremely Broad Coverage, beyond scope of what is available on the primary D&O market, including o Often only 1, maybe 2 exclusions limited to prior Claims and Fraud, Criminal Acts, etc., aka the Personal Conduct Exclusions typically Defense Costs still provided for those Personal Conduct Allegations o Broader Coverage for pre-claim inquiries and investigations Sits excess of the primary coverage, but drops down to pay Nonindemnifiable losses when needed