There was a time not that long ago when lawyers representing parties in securities litigation and arbitration did not have to concern themselves too much with insurance coverage issues. Federal and state statutory securities and common law claims were routinely filed against large investment banks, trust companies, commercial banks, savings and loans, insurance companies, broker-dealers and public companies. Collectability was not a concern with these large companies. It was also much easier than it has become to bring securities class actions, and plaintiffs’ lawyers understandably focused on deep pockets.
The world of securities and financial markets litigation has changed dramatically since the financial market meltdown of 2008-2009. Nobody would have imagined in the 1990s or early 2000s that Lehman Brothers and Bear Stearns would go out of business and some of the largest brokerage/investment banking firms in the world would merge with commercial banks to stay alive. In addition, compliance tools and supervision have improved at the major broker-dealers and large investment banks. Consequently, there have been far fewer quality claims to file against these large companies in recent years.
Instead, plaintiffs’ lawyers have focused their energies on smaller broker-dealers and registered investment advisors who do not have the same compliance tools or manpower to supervise their employees and registered representatives. A sizeable number of these smaller financial services firms have sold a variety of speculative private placements to their client bases, many of which were focused on real estate. Consequently, when the real estate market declined dramatically, so did these illiquid investments.
Many of these smaller financial services companies purchase errors and omissions insurance policies or require their registered representatives/agents to do so. Because these companies tend to be thinly capitalized and product failures typically result in a large number of claims filed against them, the claims are often uncollectible without insurance coverage.
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