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Howard B. Epstein and Theodore A. Keyes

When our clients in the financial services industry ask us to identify the important risks covered by their directors and officers (D&O) insurance policies or, perhaps more bluntly, when they ask “why do we need management liability insurance?” increasingly, we emphasize the coverage available for the costs of defending against a regulatory investigation. Those who have been the target of a Securities and Exchange Commission (SEC) investigation can attest to the fact that defense costs can accrue quickly and may ultimately run in the millions of dollars, particularly given the costs of searching and producing emails and other electronic data that may be necessary to respond to a subpoena. In addition, where the insured entity is unable or refuses to indemnify individual executives for their defense costs, an insurance policy may be the only feasible way of funding their defense. Fortunately, over the last several years, the scope of coverage available for defense costs related to regulatory investigations has expanded in D&O policies issued to private investment managers and investment funds.

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