Insurance Coverage for Phishing and Scamming Losses: Policy Interpretation, Circuit and State Law Splits

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


Conducted on Wednesday, May 6, 2020

Recorded event now available

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Program Materials

This CLE webinar will analyze insurance on activity that is costing businesses millions of dollars annually--phishing and online scams. These fraudulent schemes involve email impersonation of otherwise known contacts seeking transfers of funds for seemingly legitimate corporate purposes. When the impacted businesses seek coverage for criminal loss, insurers are denying coverage, and no clear court pattern as emerged.

Description

Phishing and online scams--email impersonation of a known contact designed to part a company with its money--are an all too common reality in today's business world. As the litigated disputes make clear, though an insured may believe that its crime policy is adequate protection, insurers continue to take a different view and the decisions stemming from the disputes have yielded divergent outcomes based on differences in state law, policy language, and factual circumstances.

Crime insurance policies often require that the loss result directly from a fraudulent act. Insurers contend, however, that because there are multiple acts between the initial fraudulent communication and the release of funds, causation is too unclear to support coverage. A federal circuit court split offers little guidance. For example, the Eleventh Circuit rejected this position in Principle Solutions Group v. Ironshore Indemnity (applying Georgia law). The Second and Sixth Circuits (also applying state law) concur. The Fifth and Ninth Circuits, however, have taken the insurer's side of the dispute.

While disputes over existing policies make their way through the courts, the search for drafting solutions is emerging. There is demand in the industry to add specific definitions applicable to social engineering. Further, as fraudsters move on from simple identity spoofing to more complex forms of fraud, counsel must stay current on drafting and courtroom arguments to keep pace.

Listen as this panel of technology-savvy insurance law experts provides education and guidance on the nuances of this incredibly complex set of issues.

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Outline

  1. Types of activity at issue
    1. Phishing and scamming
    2. Social engineering
  2. Coverage positions under existing policies
    1. Courts finding the existence of coverage
    2. Courts finding no coverage
    3. Caveat: though these are federal diversity cases, state law applies
  3. Policy drafting solutions

Benefits

The panel will review these and other essential matters:

  • The genesis, extent, and emerging forms of email and online fraud
  • Types of coverages for possible recovery of losses
  • Differing legal approaches
  • What the future holds for insurance provisions to address sophisticated online fraud

Faculty

Levine, Michael
Michael S. Levine

Partner
Hunton Andrews Kurth

Mr. Levine has more than 20 years of experience litigating insurance disputes and advising clients on insurance...  |  Read More

Moren, Harry
Harry J. Moren

Atty
Orrick Herrington & Sutcliffe

Mr. Moren specializes in commercial litigation. He also counsels corporate policyholders on insurance issues and helps...  |  Read More

Stern, Eric
Eric B. Stern

Partner
Kaufman Dolowich Voluck

Mr. Stern concentrates his practice in all aspects of insurance coverage litigation. He has analyzed, written on and...  |  Read More

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