Unbeknownst to an alarmingly high proportion of hedge fund managers, directors and officers (D&O) and errors and omissions (E&O) insurance contracts are not adhesion contracts. Rather, from the perspective of insurers, such contracts are up for negotiation – or “manuscripting,” in insurance industry lingo. Hedge fund managers accordingly have the ability – and arguably in light of their fiduciary duties
, the obligation – to negotiate for the best D&O and E&O policy language possible. (This presumes that managers have such types of insurance in the first instance, which they almost invariably should. See “Hedge Fund D&O Insurance: Purpose, Structure, Pricing, Covered Claims and Allocation of Premiums Among Funds and Management Entities
,” Hedge Fund Law Report, Vol. 4, No. 41 (Nov. 17, 2011).) In a guest article, Mark Dellecave and Ray Santiago, both experienced insurance professionals at Willis, identify some of the key D&O and E&O policy terms that managers should endeavor to manuscript, and offer guidance on negotiating and manuscripting those terms. Having gone through the manuscripting process with hedge fund industry participants, Dellecave and Santiago know the pressure points, and the preferences of insurers; and this article embodies their market color. In addition, the authors provide guidance on selecting the most appropriate D&O and E&O carriers, and the right categories of coverage.