When four top MF Global executives testified before a Congressional subcommittee on March 28 about how $1.6 billion in customer money went missing during the firm’s final days, they were accompanied by teams of lawyers. Care to guess who is paying for all that legal firepower?
As unfair as it may seem, it is the company insurance that pays, even in bankruptcy.
As virtually every large company does, MF Global bought insurance to pay for the expenses its employees might incur if they were investigated and found liable for actions taken while working for the firm. It had two policies in place at the time of its collapse into bankruptcy on Oct. 31: a “directors and officers” policy for $225 million and an “errors and omissions” policy for $150 million.
An opinion by Judge Martin Glenn of the United States Bankruptcy Court in Manhattan issued Tuesday affirmed that insurance policies bought by MF Global can be used to help pay for the lawyers for the firm’s employees, including its chief,Jon S. Corzine. Mr. Corzine and others have been named in a host of civil lawsuits, and are having to answer to several regulators trying determine whether any wrongdoing has been committed.
The judge on Tuesday noted that the employees had spent $8.3 million on legal fees so far. He authorized payment for those fees, while imposing a “soft cap” of $30 million on such expenses, which can be increased later.
Although they covered different types of conduct, MF Global’s two policies give first priority to paying for the expenses of individual employees. These are so-called wasting policies, which means that every dollar spent on paying for lawyers for the employees is one less dollar that would be available to pay a claim.
The commodity customers who lost $1.6 billion from their MF Global accounts filed a challenge in the bankruptcy court over whether the insurance policies could be tapped by the employees to pay for their lawyers. They argued that the proceeds of the insurance should be used to pay off their claims rather than going to the employees’ lawyers.
Another group involved in the case are the plaintiffs in a securities class action filed against MF Global and its officers who claim that they were defrauded by misleading statements about the company’s liquidity and internal financial controls.
Unlike the commodities customers, MF Global stockholders favored finding that the insurance policies should go to cover the expenses of the company’s officers because that would provide a larger pool of money to settle the securities case. The policies cover both legal fees and any payments made to settle claims over legal violations.
The bankruptcy trustee for MF Global, the former F.B.I. directorLouis J. Freeh, also supported the move to have the legal fees to be paid from the insurance policies. MF Global agreed to indemnify its employees for any expenses they incurred related to conduct at the firm, so having the insurers pay for the legal fees means fewer claims against the company’s remaining assets in the bankruptcy proceeding.
Judge Glenn was aware that there was a measure of unfairness in the decision, but that denying the employees the right to have their expenses covered would also be problematic. He acknowledged that many of MF Global commodities customers have faced hardships since the bankruptcy. But he also noted that the employees covered by the insurance “would suffer significant hardships if the policies were disabled.”
Some may believe that the insurance should be tapped to compensate victims, rather than officers. But as Kevin P. LaCroixwrote on the D&O Diary blog, “liability insurance exists to protect insured persons from liability, not to create a pool of money to compensate would-be claimants.”
MF Global’s two insurance policies make payment of the legal fees the first priority, and the bankruptcy judge chose to follow the terms of insurance contract.
MF Global’s two policies cover up to $375 million in liability. That sounds like a lot for legal fees but the recent experience of former executives at Lehman Brothers shows that such costs add up quickly. Lehman had $250 million in directors and officers insurance, and that amount has been almost completely exhausted through legal fees and settlements.
The legal fees for MF Global employees could quickly rise above the $30 million “soft cap” imposed by Judge Glenn if the Justice Department or the Commodity Futures Trading Commissiondecides to pursue charges. Even if a government agency settles with potential defendants, the settlement is likely to involve penalties that would be payable from the insurance policies.
Add to that the commodity customer claims for the missing $1.6 billion, and the potential liabilities can easily exceed $375 million available from the insurers.
There is a very good chance that MF Global’s insurance will not cover all the costs that arise. So in the end, the former employees — and commodity customers — may have to bear a portion of the costs.