Whereas issues a few “tsunami of pandemic-related litigation” by no means fairly materialized, in keeping with Woodruff Sawyer in its newest D&O Looking Ahead Guide for 2023, these fears have been changed with a lot of others amongst D&O insurers.
Financial challenges comparable to inflation and better rates of interest, in addition to the specter of a recession, mixed with the battle in Ukraine, restricted provide chains and a unstable inventory market are making a troublesome atmosphere for administration groups and boards.
In reality, Woodruff Sawyer discovered that the No. 1 factor on the minds of boards of administrators as they deliberate for 2023 was the financial system.
“Capital markets are off, inflation is worrying, and companies all over the place are bracing for a critical recession,” the report stated, including that “carriers will look favorably on firms that show they’re nicely positioned to handle these macroeconomic realities in addition to threat associated to company governance.”
In its Wanting Forward report, Woodruff Sawyer surveyed 39 insurance coverage carriers with whom it locations D&O insurance coverage around the globe. The survey requested questions relating to the present threat atmosphere, threat urge for food and future pricing expectations. For the primary time this yr, the corporate additionally requested underwriters to share their ideas on these questions. And it’s not all dangerous information.
“The outcomes of our Underwriters Weigh In survey confirmed that fewer underwriters than final yr imagine that D&O threat is rising,” the survey discovered.
In reality, Woodruff Sawyer discovered the primary half of 2022 introduced a dramatic shift to U.S. public firm D&O insurance coverage. Based on firm information, 70 p.c of shoppers renewing between July and December 2021 acquired a rise in premium, whereas 18 p.c of renewals got here in flat and 12 p.c resulted in a lower.
Starting in January of 2022, nonetheless, the development flipped, with 16 p.c of shoppers experiencing a rise, 15 p.c acquiring a flat renewal and 69 p.c acquiring a lower. The shift was most dramatic for IPO, life science and expertise firms, Woodruff Sawyer stated within the report, including that these had been the businesses hit hardest by the upward D&O insurance coverage pricing traits of years previous.
“In final yr’s Wanting Forward, we predicted pricing aid was on the way in which, however the velocity with which the market turned has been shocking,” the report stated. “We anticipate this development to persist into 2023.”
One purpose for higher pricing is that new insurers have entered the D&O market. Renewed competitors has prompted some carriers to cut back premiums to be able to retain shoppers.
“This has introduced welcome competitors to the D&O market throughout the board, together with renewals for firms only one yr out from an IPO,” the report stated.
Whereas some firms did nonetheless see a rise of their renewal premiums, the report discovered the severity of the rise continues to drop. On the time information was collected for the report in 2022, the median improve was simply 8 p.c, a lot decrease than the previous three years wherein median will increase had been 31 p.c in 2019, 38 p.c in 2020 and 14 p.c in 2021. Not all firms are seeing as massive of a drop of their premiums, nonetheless, with mature public firms and decrease threat profile firms experiencing much less of a premium lower.
Moreover, insurance coverage service publicity to state courtroom litigation for IPO firms has waned as firms have adopted federal discussion board provisions, which push IPO-related litigation again into federal courtroom, the report stated. Pricing for the primary $10 million of insurance coverage on a brand new IPO peaked within the first quarter of 2021 however has since moderated because of the altering litigation dynamic.
“Nonetheless, D&O insurance coverage pricing for brand new public firms remains to be far costlier than pricing for mature public firm friends,” the report added.
Within the final decade, securities class motion filings peaked in 2019 as nicely, when a file 268 lawsuits had been filed. Within the final two years, the variety of fits decreased to 210 in 2020 and 182 in 2021, with solely 85 fits filed within the first half of 2022, the report stated.
Challenges Nonetheless Forward
That stated, D&O insurance coverage underwriters nonetheless have issues, with most surveyed underwriters saying they imagine D&O threat is rising. That is demonstrated by the truth that, whereas securities class actions are trending downward, settlements have remained excessive.
Within the first half of 2022, Woodruff Sawyer information confirmed 48 settlements for an combination whole of $1.4 billion in payouts — a lot increased than the 10-year common. One other 476 instances stay to be settled, in keeping with Woodruff Sawyer’s evaluation.
“This issues due to the sturdy and constructive correlation between the time it takes for a case to settle and settlement quantities — an issue for D&O insurance coverage underwriters,” the report stated, discovering in its survey that 86 p.c of underwriters suppose that firms aren’t as conscious of the frequency, threat and price of litigation as they need to be.
With this in thoughts, underwriters are in search of firms to show resilience and powerful company governance round cybersecurity, ESG, privateness oversight, local weather change and monetary well being, the report discovered.
“The softening D&O insurance coverage market is a welcome change,” stated Carolyn Polikoff, nationwide business traces follow chief at Woodruff Sawyer, within the report. “However not all is rosy within the D&O market. Underwriters are involved about macroeconomics, the battle in Ukraine and a unstable inventory market. …We anticipate the gentle market and advantageous pricing will proceed into 2023 as a consequence of components comparable to extra competitors within the public D&O market. Nonetheless, every firm and every business has their very own distinctive challenges.”