Question

Marsh & McLennan Companies is the largest provider of insurance brokerage services in the world. It holds itself out to its clients as a fiduciary that will act solely on clients’ behalf in purchasing insurance policies for them. Starting in 1987, Emerson Electric Company hired Marsh to act as its fiduciary in procuring various insurance policies, such as excess liability, aircraft, and international. Emerson paid Marsh substantial amounts of money to recommend insurance policies that met its needs at the lowest possible price. Unknown to Emerson, Marsh embarked on a business plan in the early 1990s in violation of its fiduciary duties to Emerson: Marsh entered into agreements with insurance companies under which the insurers agreed to pay Marsh monies in consideration of Marsh’s pledge to direct business to them. These agreements were referred to by various names such as placement service agreements or market service agreements. These documents were referred to as “ kickbacks.” At no time did Marsh’s disclose the nature or extent of kickbacks that it was receiving. As a result of Marsh’s breach of its fiduciary duties, Emerson paid an inflated price for its insurance policies. Additionally, Marsh directed Emerson to make its premium payments through Marsh itself, rather than directly to the insurance companies. The checks were made payable to Marsh. Unbeknownst to Emerson, Marsh did not immediately forward the premium payments to the insurers; instead, for a period of time before the insurance companies would be paid, Marsh would invest Emerson’s premium payments to earn interest, which it retained as profit. In Marsh’s 2003 Annual Report, it referred to this revenue item as “ fiduciary interest income.” Is this considered a breach of fiduciary duty? Why or why not? [ Emerson Electric Co. v. Marsh & McLennan Companies ( Mo. Ct. App 2011). Case No. 22054– 00569, www. courts. mo. gov, accessed September 6, 2011.]

Answer 1