ERISA Fiduciary Liability Insurance: Limiting Exposure for Breach of Duty Claims

Negotiating the Policy, Overcoming Coverage Challenges, and Responding to Enforcement and Litigation

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Tuesday, December 22, 2009

Recorded event now available

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Course Materials

This CLE seminar will explain the key provisions in an ERISA fiduciary liability insurance policy, best practices for negotiating the policy, and strategies for dealing with an insurer when a claim arises, enforcement action is taken, or litigation ensues.

Description

Pension plan administrators have seen an explosion in ERISA lawsuits by plan participants asserting breach of fiduciary duty. Allegations include failure to act properly regarding a company stock fund, excessive plan fees, inadequate disclosure of financial arrangements, and plan mismanagement.

Litigating and settling ERISA cases can cost companies tens of millions of dollars. To protect themselves, plan fiduciaries are now more focused than ever on their fiduciary liability insurance policy to cover the costs of potential claims settlement and legal expenses.

When negotiating and seeking coverage under an ERISA fiduciary liability insurance policy, employee benefits counsel must understand which losses the policy will cover, critical steps to minimize loss before a potential claim arises, and strategies to prevail in coverage disputes.

Listen as our panel of employee benefits attorneys and insurance professionals explains best practices for negotiating the insurance policy and key considerations for the insured-insurer relationship if there is a claim, enforcement action, or a lawsuit.

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Outline

  1. Understanding and negotiating ERISA fiduciary liability coverage
    1. Scope of coverage and exclusions
    2. Underwriting factors
    3. Pricing
    4. Duty to defend v. duty to indemnify
    5. Interplay with D&O insurance
    6. Key considerations in negotiating policy (new policies and renewals)
  2. Best practices for fiduciaries when a potential claim arises or a government audit or enforcement action is possible
    1. Understand how policy operates
    2. When and how to advise the insurer
    3. What to disclose to the insurer
  3. Practical considerations in the insurer relationship when litigation or regulatory enforcement action follows
    1. Selection of counsel
    2. Reservation of rights letter
    3. Coverage disputes
    4. Insurance litigation guidelines
    5. Scope of contact during motion practice, setting of defense strategy
    6. The settlement process
    7. Liability limits and appeals

Benefits

The panel will review these and other key questions:

  • What new liability risks have emerged for retirement plan fiduciaries as a result of the market downturn?
  • How can fiduciaries best protect themselves against breach of fiduciary duty lawsuits associated with retirement plan management?
  • What strategies have been effective for negotiating comprehensive fiduciary liability insurance policies and prevailing in coverage disputes?

Faculty

Jonathan Evan Goldberg
Jonathan Evan Goldberg
Partner
Seyfarth Shaw

He represents corporate clients in complex commercial, ERISA, and employment litigation. He has successfully litigated...  |  Read More

Lawrence Fine
Lawrence Fine
Senior Vice President, Chief Technical Officer of Financial Lines Claims
Chartis

He manages the claims group, which handles all fiduciary liability (ERISA) claims, in addition to complex D&O and...  |  Read More

Christine A. Dart
Christine A. Dart
Vice President
Chubb & Son

She is the Global Fiduciary Liability Product Manager for Chubb Specialty Insurance. As Product Manager she is...  |  Read More

Howard Pianko
Howard Pianko
Partner
Seyfarth Shaw

He advises clients on matters relating to employee benefits, executive compensation, fiduciary responsibility and...  |  Read More

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