Don’t Let Your D&O Insurer “Bump” a Covered Claim

James R. Murray, Jared Zola, and Kyle P. Brinkman

Murray, James R.Zola, JaredBrinkman, Kyle P.Companies facing shareholder derivative suits should be wary of their directors’ and officers’ liability (“D&O”) insurers attempting to avoid providing coverage for settlements or judgments based on “bump-up” or “inadequate consideration” exclusions. The historic purpose of the exclusion is to prevent insureds from negotiating an unfairly-low price when purchasing another entity or completing intracompany transactions and then using insurance proceeds to supplement that price to come up with the fair market value. Continue reading “Don’t Let Your D&O Insurer “Bump” a Covered Claim”

Trying the Environmental Coverage Case in 2017

James R. Murray and Omid Safa

murraysafaIt can be easy for insurance trial lawyers to become complacent when fighting the ancient coverage wars over asbestos and pollution related-liabilities. But good trial lawyers know how to revisit their time-tested themes with renewed energy and vigor each time. They face each trial fresh, as if it is the first time the words have been spoken, because the trial lawyer knows that for the jury, that might as well be true. The evidence and the themes will be all new. Continue reading “Trying the Environmental Coverage Case in 2017”

The Ins and Outs of Cyber Extortion Insurance Coverage

James S. Carter

Carter, James S.According to FBI data, cyber-criminals are on pace this year to collect approximately $1 billion through cyber extortion. This is a practice in which extortionists threaten to cripple a computer system or obtain and/or release confidential information unless their demands (usually for money) are satisfied. Although much of this money is coerced from individuals in increments of several hundred dollars, more and more organizations are finding themselves in cyber extortionists’ crosshairs, including documented incidents against local governments, schools, hospitals and businesses in a range of industries. As cyber extortionists increasingly target organizations rather than individuals, security professionals fear the costs of cyber extortion incidents could dramatically increase. Continue reading “The Ins and Outs of Cyber Extortion Insurance Coverage”

Concurrent Cause Doctrine: The Most Efficient Approach?

Anna Svensson

anna-svenssonOn December 1, the Florida Supreme Court held that in the first party context where concurrent perils result in a loss, the concurrent cause doctrine applies to determine coverage.

Background: The case in front of the Florida Supreme Court involved two parties: homeowner John Sebo, who purchased his Naples home in 2005, and his insurer, American Home Assurance Co., or AHAC. The applicable insurance policy insured against “all risks” and provided additional coverage for the loss of use of Sebo’s home. Continue reading “Concurrent Cause Doctrine: The Most Efficient Approach?”

How to Use the Attack on Dyn to Improve Your Companies’ Cyberinsurance

James S. Carter

Carter, James S.October was National Cyber Security Awareness month. The goal was to raise awareness about the importance of cybersecurity. That message was underscored on October 21, 2016, when attackers staged a massive cyberattack against Dyn, a company that provides services that help Internet users connect to Dyn’s customers’ websites. The attack on Dyn had the effect of disrupting access to major websites, such as Twitter, Netflix, and The New York Times, as well as perhaps lesser known but no less critical websites that many companies rely on for hosted services that they use to operate their businesses. Continue reading “How to Use the Attack on Dyn to Improve Your Companies’ Cyberinsurance”

Buying Rep & Warranty Insurance? Be Sure to Watch Your Language!

Lisa M. Campisi

campisiNumerous commentators have written as to how Representations and Warranty Insurance (“Rep & Warranty Insurance”) can be a valuable tool in getting deals closed. Indeed, numerous difficult deals that may have otherwise died, or at least gone sideways, have been able to close thanks to the prudent use of Rep & Warranty Insurance.

As noted at a recent Blank Rome CLE presentation to several hundred in-house and outside counsel, like any other insurance policy the quality of a Rep & Warranty Insurance policy will depend on essentially one thing: the policy language. Accordingly, this post does not focus on whether or how to obtain such insurance, but on some of the key terms to analyze and seek to negotiate or enhance if you do. Continue reading “Buying Rep & Warranty Insurance? Be Sure to Watch Your Language!”

Insurance Liability, Risks, and Options in Augmented Reality: Catch ‘Em All

Kevin R. Doherty, Kevin J. Bruno and James S. Carter

Kevin R. Doherty Kevin J. Bruno Carter, James S.The rising Pokémon Go sensation has dramatically increased the popularity of augmented reality games, but it has also brought with it increased risks and liabilities for both game users and developers alike. For those who don’t know, Pokémon Go is a mobile app that, although released just last month, has already been downloaded over 75 million times, generated more than $75 million in revenue, and boasts daily usage statistics that have exceeded Snapchat, Twitter, Instagram, and Facebook. It’s a location-based augmented reality game that allows users to partake in virtual scavenger hunts. Using the user’s GPS and mobile camera, players are encouraged to explore their surroundings, seek out animated characters in real world places, and “catch ‘em all.” The characters are overlaid on the player’s screen and displayed as if they exist in reality. Unfortunately, distracted players on the hunt can end up wandering (or driving) into places they shouldn’t be, and becoming injured or injuring others as a result.

The number of Pokémon Go calamities increases daily, with incidents ranging from the mundane to the absurd and dangerous. In the few short weeks since its debut, users have experienced or caused numerous personal injuries, property damage, and car accidents. Some users have become stuck in trees and locked in cemeteries, while more serious incidents involve users straying onto train tracks, falling off cliffs, or entering restricted nuclear power facilities—all while on the hunt for Pokémon characters. Still others in pursuit of Pokémon have trespassed on private property, and some users have even been robbed after being targeted and led to specific locations using the app. Continue reading “Insurance Liability, Risks, and Options in Augmented Reality: Catch ‘Em All”