Insurer Duty to Defend Biometric-Related Statutory Violations: Triggers, Standing, Pleading, Exclusions

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

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Conducted on Tuesday, July 12, 2022

Recorded event now available

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Course Materials

This CLE webinar is about when and how liability insurance of various kinds will give rise to the duty to defend alleged violations of statutes regulating the collection and disclosure of biometric-related information, including fingerprints, facial recognition, voice recordings, and even keystroke patterns. The panel will explore theories of coverage, relevant exclusions, and how plaintiffs are pleading into, if not indemnity coverage, at least the duty to defend.

Description

The year 2021 was another important one for biometric privacy, and counsel for insurers and policyholder defendants are bracing against the onslaught of lawsuits and the search for coverage. Businesses faced with such lawsuits have turned to their liability insurers for defense, and recent decisions suggest a roadmap for alleging and finding an obligation to defend.

Coverage for violation of biometric-related statutes and regulations is a national issue. The Federal Trade Commission (FTC) announced its intent to aggressively police the use of facial biometrics for the foreseeable future. Illinois, Texas, Washington, and California have statutes regulating biometric information. Many states, including Kentucky, Maine, Maryland, Massachusetts, New York, and West Virginia, are weighing bills with a private right of action. Many cities also have ordinances that regulate the use of biometrics and provide private rights of action, allow class litigation, and authorize statutory damages for noncompliance.

Claims arising from collecting and disclosing biometric data raise novel coverage questions under liability insurance policies and their exclusions.

Listen as this experienced panel discusses what the case law says about what and when coverage for biometric-related collection and disclosure is triggered under liability insurance policies and what exclusions apply.

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Outline

  1. Statutory framework at federal, state, and municipal levels
  2. Triggers
    1. Policyholder view
    2. Insurer view
  3. Standing
  4. Pleading
  5. Exclusions
  6. Damages

Benefits

The panel will review these and other core issues:

  • Will procedural violations of applicable statutes governing the collection and disclosure of biometric information trigger invasion of privacy exclusions in general liability policies?
  • Will the company's commitment to abide by "all applicable" laws trigger coverage under employment liability practices policies?
  • What exclusions may preclude the duty to defend claims under biometric-related statutes, and who has the burden of establishing them?
  • What are best approaches when the only thing clear is that everything is unclear?

Faculty

Malone, Cort
Cort T. Malone
Shareholder
Anderson Kill

Mr. Malone is a shareholder in the New York and Stamford offices of Anderson Kill and practices in the Insurance...  |  Read More

Healy, Daniel
Daniel J. Healy
Partner
Anderson Kill

Mr. Healy represents policyholders seeking insurance coverage, and is Deputy Co-Chair of the Cyber Insurance Recovery...  |  Read More

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