Insurance Coverage for Data Breach and Privacy Violations: Current Status of Coverage Under D&O, E&O and Cyber Policies

A live 90-minute CLE webinar with interactive Q&A


Wednesday, August 23, 2017
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, July 28, 2017


This CLE webinar will provide insurance counsel with an analysis of current trends and developments regarding data breach and privacy violation claims and litigation. The program will analyze the current landscape regarding potential insurance coverage under D&O, E&O, and cyber policies. Are the newer cyber products living up to expectations as originally marketed to policyholders?

Description

Disputes concerning coverage for data breach and privacy violations have moved away from traditional general liability policies to other insurance products, including newer cyber insurance. One of the more recent trends seen is an increase in cases seeking coverage under D&O policies. In addition, the New York Department of Financial Services regulations now require boards of directors to certify compliance with a regulation that requires insurers and other financial services institutions to establish and maintain a cybersecurity program.

In the past few years, a body of case law has emerged indicating the scope of coverage, or limitations to coverage, under specific business policies and for different cybercrimes. In  Apache Corp. v. Great American Insurance Co., the Fifth Circuit held that an email phishing scam did not implicate computer fraud coverage. 

As courts begin to interpret cybersecurity policies, it is likely they will rely on long-standing principles of insurance and contract law applicable to other types of policies. The court’s ruling in P.F. Chang’s China Bistro v. Federal Deposit Insurance Co. is illustrative on that and underscores the importance of understanding the policy provisions and exclusions.

Listen as our panel of experts discusses trends in data breach and privacy violation claims and litigation. Our panel will outline how to examine existing business policies and evaluate cyber policies to determine the optimal coverage for each situation. 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, and provide an update on the case law that has begun to emerge.

Outline

  1. Trends in data breach litigation, liabilities, and exposures
    1. Standing and requirement to show “damages” — plaintiffs’ lawyers still trying
    2. Increase in regulatory actions (FCC, SEC, FTC, etc.)
    3. Rise in shareholder and other securities actions
  2. Current status of coverage under D&O, E&O policies
    1. Apache Corp. v. Great American Insurance Co. (5th Cir.)
    2. Relevant coverage under D&O and E&O policies
    3. New York Department of Financial Services regulations
  3. Cyber insurance trends and developments
    1. First-party coverages
    2. Third-party liability
    3. Coverage battlegrounds (misrepresentation, sublimit disputes)
    4. P.F. Chang’s China Bistro, Inc. v. Federal Insurance Co. (D. Ariz. 2016)

Benefits

The panel will review these and other key questions:

  • Which policies may yield the most recovery for costs and expenses arising from the breach such as notification, credit monitoring and public relations?
  • When might D&O and E&O provisions and policies provide coverage to cyber risks?
  • Have cyber policies provided adequate protections to the companies that were early purchasers of these new products?

Faculty

Roberta D. Anderson, Director
Cohen & Grigsby, Pittsburgh

A Partner of the firm’s Data Security and Insurance Recovery Practice Groups, Ms. Anderson concentrates her practice in the areas of insurance coverage litigation and counseling and emerging cybersecurity and data privacy-related issues, including security incident planning and breach response. For nearly two decades, she has represented clients in connection with a broad spectrum of insurance issues arising under almost every kind of business insurance policy. 

Laura Schmidt, Esq.
White and Williams, Philadelphia

Ms. Schmidt's practice includes insurance coverage litigation, bad faith litigation, and insurance contract disputes. Her practice focuses on complex insurance coverage and defending insurers in coverage actions for long term environmental contamination. 

William T. Um, Policyholder, Counsel
Kilpatrick Townsend & Stockton, Beverly Hills Cal.

Mr. Um represents corporate policyholders in complex insurance coverage claims relating to class actions, media liability, IP disputes, data breach and privacy issues, directors and officers liability, and environmental and toxic tort matters. He also handles business litigation matters involving complex commercial contracts, fraud and misrepresentation claims, and unfair competition practices.


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Insurance Law Advisory Board

John Broghammer

Partner

Greve Clifford Wengel & Paras

Tred Eyerly

Director

Damon Key Leong Kupchak Hastert

John D. Green

Partner

Farella Braun + Martel

Alan P. Jacobus

Lafayette & Kumagai

William E. Kelley, Jr.

Partner

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William O. Krekstein

Partner

Timoney Knox

Jay M. Levin

Principal and Chair of the Insurance Recovery Practice

Offit Kurman

Peter J. Mintzer

Partner

Selman Breitman

Barry S. Neuman

Partner

Whiteford Taylor Preston

Andrew G. Wanger

Partner

Clyde & Co.

Britton D. Weimer

Partner

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Partner

Hinshaw & Culbertson

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