As the details about the Satyam Computer Services scandal have emerged and the U.S. securities lawsuits have begun to flood in, questions have also arisen about Satyam’s D&O insurance. At least some of the questions are answered in a January 8, 2009 article in The Economic Times (India’s largest financial daily) entitled "Satyam Scam Triggers Biggest D&O Claim" (here).
According to the article, Satyam carries a $75 million D&O insurance program led by Tata AIG, which is a joint venture of Tata Group and American International Group. The article also states that the Satyam claim "could trigger one of the largest Directors and Officers insurance claims in India."
Of course, knowing the limits of liability under Satyam’s insurance program does not necessarily tell you how much insurance ultimately will be available to defend and indemnify Satyam and its directors and officers. In a case where the company’s Chairman has publicly admitted fraud, the applicable terms and conditions will be absolutely critical. I discuss below a couple of issues that seem likely to arise.
The Fraud Exclusion
Without knowing more about the specific terms applicable under Satyam’s D&O insurance program, it is difficult to say anything with certainty. However, at least in the U.S., D&O insurance policies do not cover fraudulent, criminal or intentional misconduct.
But, again in the U.S., these exclusions typically do not kick in until there has been an "adjudication." Even though Satyam’s Chairman has admitted cooking the books, he has not (yet) been convicted of anything, so to the extent the policy’s exclusions have an "adjudication" requirement, the exclusions would not apply, at least in the interim.
Moreover, a well-constructed U.S. policy would also contain a "severability of exclusions" provision so that even if an exclusion would apply to preclude coverage based on the Chairman’s misconduct, it would not apply to others who were uninvolved in the conduct. Of course, many questions are now being asked about who else at Satyam might have been involved in the fraudulent accounting. The Chairman’s letter sought to establish that other board members were unaware of the fraud.
A prior post discussing the "adjudicated fraud" exclusion can be found here. A separate post discussing an interim decision in the Refco matter and relating to the interaction of the exclusion and the funding of defense costs can be found here.
Another insurance issue that likely will be raised is the question of policy rescission. Given the magnitude of the fraud and the apparent length of time during which it was going on, the question may be asked whether the policy was procured through misrepresentations in the application process.
Under the typical current D&O policy in the U.S., application misrepresentations can serve as a basis on which the carrier can rescind the policy only as to persons with knowledge of the misrepresentations and as to persons to whom that knowledge is imputed. A well-constructed U.S. policy will limit "imputation" so that innocent persons do not risk rescission of their coverage because of another’s misrepresentation. The imputation language used in Satyam’s policy could well be critical.
A prior post discussing D&O insurance policy rescission issues can be found here (refer especially to my "final thoughts" toward the end of the post).
I welcome any insight readers can provide about the provision of the typical D&O insurance policy in the Indian market, as well as any additional information anyone can supply about the Satyam program, particularly any additional carriers involved.
Very special thanks to loyal reader Aruno Rajaratnam for providing a copy of The Economic Times article as well as other information about Satyam.
Global Accounting Outlook = Bleak: Fitch's Ratings has issued a January 8, 2009 report entitled "Accounting and Financial Reporting: 2009 Global Outlook" (available here, registration required) with some very interesting observations about the year ahead for public company accountants. As the report states in its opening line, "these are indeed interesting times for accounting."
Among other things, the report notes the following with respect to the "going concern" questions that many companies and their accountants will face as the companies prepare their year-end 2008 financial statements:
The sharp decline in global debt and equity securities values and a very difficult credit environment have presented a unique set of chllenges to the interpretation and implementation of some pervasive accounting issues. An immediate question facing some companies preparing their full-year 2008 financial statements, is how best to justify a "going concern" basis, given the doubts some have about their abiltiy to refinance. Management statements on this issue should be required reading for investors and analysts. The determination of impairment charges on debt securities and the lack of clear-cut rules on the subject have pitted some issuers against their auditors. This is a particularly sensitive issue because profitability and regulatory capital adequacy are at state for many financial institutions.
Obviously, insurance companies are among the companies for whom the determination of impairment charges will be particularly sensitive. And among others who will want to read companies' managers' statements on the "going concern" issue, in addition to investors and analysts, are D&O underwriters.
A news article describing the Fitch report can be found here. Special thanks to a loyal reader for sending along the news article and a link to the report.