Analyzing D&O and E&O Coverage for Data Breach and Privacy Litigation and Regulatory Investigations

Insurer and Policyholder Approaches to Resolving Coverage Disputes

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, October 25, 2016

Recorded event now available

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Course Materials

This CLE course will provide insurance counsel with the knowledge to analyze availability of coverage for data breach and privacy violation claims and litigation under D&O and E&O policies for third-party liability and defense costs. The program will instruct counsel on how coverage can reach other exposures, such as regulatory investigations, fines and penalties, and the first-party costs associated with managing a data breach event.

Description

D&O insurance is front and center since data breaches spurred derivative lawsuits against company directors and officers of Target and Sony. Additional scrutiny by regulatory agencies such as the FCC, SEC and FTC on officers’ and directors’ role in cybersecurity has made the issue a major concern for companies and their directors and officers.

To date, there has been little or no case law regarding the applicability of D&O policies to class action lawsuits arising out of data breaches. Counsel determining whether coverage is available under a D&O or E&O policy must analyze the specific policy language, conditions, provisions and exclusions, and apply it to the type of claim alleged and facts of the claim.

While specific cyberliability exclusions are not prevalent in D&O or professional liability policies, other standard policy exclusions may apply. Given the active nature of federal and state agencies in regulating cybersecurity, for example, the scope of regulatory exclusions may become critical.

Listen as our panel of insurance attorneys discusses coverage under D&O and E&O policies for data breach and privacy violation claims and litigation for third-party liability and defense costs. The panel will also look at how these coverages can reach other exposures, such as regulatory investigations, fines and penalties, and the first-party costs associated with managing a data breach event. The panel will review defense and plaintiff approaches to resolving coverage disputes between insurer and insured that arise in the wake of data breaches and privacy violations.

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Outline

  1. Scope of D&O coverage
    1. Side A, B and C coverage
    2. Exclusions
      1. Regulatory exclusion
      2. Prior/pending litigation exclusion
      3. Bodily injury exclusion
      4. Contractual liability exclusions
  2. Data breach claims and causes of action implicating D&O and E&O coverage
  3. Specific policy issues
    1. “Other insurance” clauses
    2. Prior knowledge of threats or related wrongful acts
    3. Late notice
  4. Recent case law and litigation trends

Benefits

The panel will review these and other key issues:

  • Relevant policy exclusions that may impact coverage for cybersecurity claims and litigation
  • Key policy language impacting coverage for cybersecurity claims and litigation
  • Recent case law and litigation trends

Faculty

Anderson, Roberta D.
Roberta D. Anderson
Partner
K&L Gates

Ms. Anderson has over fifteen years of experience in complex commercial litigation and alternative dispute resolution....  |  Read More

Mooney, Joshua A.
Joshua A. Mooney
Partner
White & Williams

Mr. Mooney is the co-chair of his firm’s Cyber Law and Data Protection practice group and is a member of its...  |  Read More

William T. Um
William T. Um
Policyholder, Counsel
Kilpatrick Townsend & Stockton

Mr. Um represents corporate policyholders in complex insurance coverage claims relating to class actions, media...  |  Read More

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