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Deferred Prosecution Agreements and Directors Liability

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Directors' D&O coverage

Consideration of the impact of DPAs on directors’ liabilities naturally carries with it the necessity to consider the impact on D&O insurance. An “ABC” D&O policy represents three “Sides” of coverage, which all have the capacity to adversely impact the others. D&O insurance, under Side A, provides a comfort blanket of protection to directors and senior officers where the company cannot or will not indemnify. However, the development of the product has also led to the standard provision of entity coverage, under Side C, and reimbursement cover for the entity where indemnification obligations are duly met, under Side B. D&O will be of particular pertinence to an individual when a corporate DPA arises: Side B may respond where the company indemnifies its (former) directors, but Side A will be crucial in responding where the company cannot (or possibly will not) do so as a result of the agreement. Further, Side C considerations, such as the vast depletion of the policy limit of indemnity, may adversely impact the directors’ ability to obtain coverage under an ABC policy. For the director, access to coverage under Side A will be of the utmost importance in the circumstances.

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