Generally, if a “benefit plan investor” owns 25 percent or more of any class of equity interests issued by a hedge fund, the fund and its manager will become subject to certain provisions of the Employee Retirement Income Security Act of 1974 (ERISA). See “Hedge Fund Industry Practice for Defining ‘Class of Equity Interests’ for Purposes of the 25 Percent Test under ERISA
,” Hedge Fund Law Report, Vol. 3, No. 29 (Jul. 23, 2010). For hedge fund managers, there are benefits and burdens to accepting an investment that will subject them to ERISA. The chief benefits are that ERISA investors tend to be sizable, serious, long-term investors. The chief burden is the complex regulatory regime with which ERISA managers must contend, and the consequent expansion of potential liability and administrative and other costs. See “Applicability of New Disclosure Obligations under ERISA to Hedge Fund Managers
,” Hedge Fund Law Report, Vol. 5, No. 9 (Mar. 1, 2012). Hedge fund managers soliciting benefit plan investors therefore seek to capture the upside of ERISA investments while mitigating the potential liability and related costs. One of the more effective ways in which savvy managers do so is by purchasing fiduciary liability insurance. But fiduciary liability insurance is a complex product, and structuring an appropriate policy requires an involved legal and business analysis. The intent of this article is to provide hedge fund managers with a checklist of issues to consider when evaluating the purchase of fiduciary liability insurance and when actually purchasing and structuring such insurance. In particular, this article details: what fiduciary liability insurance is; the rationale for purchasing such insurance; how such insurance is typically structured; what types of claims and costs are typically covered; the distinction between fiduciary liability insurance and errors and omissions (E&O) coverage; typical premium pricing; the allocation of premiums among management entities and funds; notable fiduciary liability insurance carriers; and the interaction between such insurance and indemnification provisions in manager and fund governing documents.