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Deferred Prosecution Agreements and Directors Liability

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Companies' D&O coverage

An ABC form D&O policy represents a package of protection for directors and senior officers and also the corporate body. The “ABC” acronym represents the three different Sides (or “Insuring Agreements”) of cover: Side A provides protection to the director; Side B provides for reimbursement to the company upon its own indemnification of the director; and Side C provides entity coverage (in typically limited circumstances). Where the coverage provided to a director under Side A is found within an ABC D&O policy, consideration of the response of Side A alone is insufficient in determining the impact of DPAs on the director's insurance coverage. Though prima facie the provision of directors’ cover appears separate, under Side A, characteristics of the ABC policy may serve to diminish or prevent the extension of coverage. A shared limit of indemnity across the ABC policy could be detrimental to directors’ access to cover, particularly where larger actions indemnifiable under Side C arise. Even where the limit is not shared, lack of sufficient severability wording could mean that an exclusion applied in refusing coverage to the entity is consequently triggered against directors. The impact of DPAs on Side B and Side C must therefore be considered in order to ensure that directors remain sufficiently protected. Not least, directors implicitly benefit where the entity holds Side B cover and circumstances arise whereby coverage can be extended: coverage is not extended to the directors, but directors will have been indemnified by the company for Side B to be triggered.

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