It has been a few weeks since Facebook faltered out of the gate in its initial public offering (IPO)—and while the multiple lawsuits claiming improprieties will take a while to work through the legal process, coverage changes may be coming.

Some brokers are seeing signs that insurers are becoming more cautious about IPOs, especially for technology companies involved in social-media platforms.

With painful memories of the technology-IPO bubble bursting back in 2000, which resulted in Directors & Officers Liability (D&O) claims payouts of around $1 billion, insurers are understandably wary of a repeat.

“Right now, the D&O market for initial public offerings is…I think our official term is 'jittery,'” says Ann Longmore, executive vice president of D&O product management for Willis North America's Financial & Executive Risks Division.

She says this applies to IPO programs that have either received a premium quote or are waiting for one. Some carriers are considering adding exclusions to their policies, Longmore adds, that would keep investment brokers from being indemnified under the D&O policy.

Traditionally, it has been a practice in the financial industry for investment brokers to ask for indemnification in IPOs. If the proposed exclusions are applied, the company underwriting the IPO would have to bear the costs associated with any litigation, insurance brokers say.

All the buzz over the Facebook deal may point to premium increases for D&O covering IPOs, says Phil Norton, president of the Professional Liability division of Arthur J. Gallagher, but he stresses these changes will not be immediate because there have not yet been any settlements and these issues traditionally take years to resolve.

“It's important to note that there have been a lot of headlines, but it has only traded a few days,” Norton explains. “We have to see where this stands in 90 days and see how the stock performs.”

One surprise about the Facebook IPO is how quickly lawsuits were brought. Longmore says this might be the shortest period of time for a lawsuit to be filed in regard to an IPO, adding the shortest period she is aware of previously was seven days.

Facebook began trading on May 18 and a suit was brought in U.S. District Court Southern District of New York on May 22, claiming that the NASDAQ Stock Exchange failed to properly handle share transactions.

Another suit was filed against Facebook, the company's executives and its investment brokers on May 23, charging there were material defects in the company's prospectus that led to a loss in the share price from its initial $38 offering.

Wayne Borgeest, a partner in the law firm of Kaufman, Borgeest & Ryan in New York, says while the suits may have come quickly, they are not premature because in class-action suits, the first attorney able to collect the most clients traditionally becomes the lead attorney.

What makes this case unique is the size of the offering—with more than 421 million shares at an offering price of $38 a share, the damages “would be substantial” should the plaintiffs prevail, says Borgeest.

“This is a case Facebook wants to win quickly on a motion,” he says, noting that this would be quite an expensive case to litigate otherwise.

However, the facts will take months to come out.

“This [situation] is going to unfold over time, and it may or may not be a case that has legs,” Borgeest adds. “It's premature in terms of people making judgments on the merits of the case. It's not premature in the sense that people have already bought the stock and lost money, and if there was a material omission in the offering materials, then those people are already, potentially, entitled to damages.

“I don't think anyone really knows what the facts are of what really happened,” he continues. “It could turn out to be that everything can be explained and there were no violations of the law.”

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Facebook Gives Insurers D&O Jitters on Future IPOs

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