October 26, 2016

FI and D&O International Review - October 2016

This update cannot go by without mention of the historic referendum in June which saw the UK vote to leave the EU. The ramifications of the UK’s exit on business and on insurers is uncertain at this stage and of particular concern is the issue of whether passporting rights (that is the system that allows financial services businesses regulated in the UK to operate freely across the EU) are included in any exit deal. With Theresa May’s announcement at the beginning of October that Article 50 will be triggered by the end of March 2017, the coming months and, indeed, years will be a crucial time for the industry.

Further change is upon us in the form of the landmark £14bn class action against Mastercard in relation to interchange fees it charged which, it is alleged, resulted in customers paying more for their goods. This is the first such action under the new “opt-out” Consumer Rights Act 2015 process and potentially marks a new era for class actions in the UK. Regulatory investigations and enforcement actions continue to take centre stage and in this Review we look at criticisms levied against the regulators in how they have handled the problem and methods they are seeking to adopt to improve the enforcement process and tighten up senior management accountability. As part of this, by the end of October, firms must make their first annual submissions notifying breaches of the conduct rules for staff included in the certification regime. The certification regime operates alongside the senior managers regime (SMR) and applies to individuals in UK banks, building societies, credit unions, PRA-designated investment firms and branches of foreign banks operating in the UK.

Elsewhere in this Review, we examine the challenges in the German D&O market along with a focus on D&O “hotspots” in the US and Hong Kong. We also report on a number of cases coming through in the US on professional exclusion clauses, and look at the reasons for the uptick in warranty & indemnity insurance products being purchased globally.

Finally, we give our usual case summary round up, together with a close up analysis of the UK Supreme Court case of Asset Land Investments Plc & Anor v Financial Conduct Authority on collective investment schemes and an Australian Federal Court case that establishes the importance of board members to discharge their duties fully and to not rely on their fellow board members in this regard, even if they do not speak the language.