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09 May 2014 Insurance And White Collar Defense: If You Don’t Have One, You May Not Be Able To Have The Other

This post appeared originally on the Government Enforcement Exposed (the “GEE”) blog.   The BUGA (“Big Ugly Government Agency”) has just metaphorically pounded on the door of your company, howling about civil and criminal charges, mind-blowing fines and penalties, debarment, seizing your first-born and otherwise threatening your existence. So you seek out a phenomenal white collar firm to defend you and yours and lo, they recommend a vigorous internal investigation, leading to the formation of a rock solid defense that, if needs be, can be deployed to defend against BUGA from here to the Supreme Court and back again.   It will, however, cost a lot of money to defend yourself. But, like many a modern company, you have insurance coverage that, you believe, will fund…

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08 May 2014 Scott Godes presents “Cultivating Ethics: Mitigating Vulnerability to Cyber and Data Security Threats in Order to Maintain Client Confidentiality”

Scott Godes,  from Barnes & Thornburg’s Policyholder Insurance Recovery Group will be a panelist presenting a webinar titled, “Cultivating Ethics: Mitigating Vulnerability to Cyber and Data Security Threats in Order to Maintain Client Confidentiality.”  The presentation will be part of Virtual LegalTech.   The webinar will take place on May 15, 2014, and run from 9:30 a.m. – 5 p.m. ET.  Scott’s session will from 3:45 p.m. until 4:45 p.m. ET.  You can register for the event here.   The webinar will include discussion about the following topics: In light of the recent NSA surveillance of US law firms, how safe is your data? What types of firms are most susceptible to cyber attacks and data breaches? Why in-house legal departments need a sound cyber security strategy. Best practices for…

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08 May 2014 Increasing data breach costs should lead to a review of insurance policies and vendor contracts

The Ponemon Institute has released its 2014 Cost of Data Breach Study: Global Analysis.  The Ponemon 2014 study, (additional registration is required), offers fascinating insights into the changing world of data breaches, data security, data privacy and cybersecurity incidents.   The report is dated as of the year of publication (May 2014), with the majority of incidents that were evaluated having taken place in 2013.1  One fact in the report that likely will make the most headlines, is that “the average total cost of a data breach for the companies participating in this research increased 15 percent to $3.5 million.”2  The report explains further that “[t]he average cost paid for each lost or stolen record containing sensitive and confidential information increased . . . to $145 ….

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07 May 2014 Chris Yetka presents “Cyber Risk: The Cost of a Breach”

On May 7, 2014, Christopher Yetka from Barnes & Thornburg’s Policyholder Insurance Recovery Group presented a breakfast seminar with Dan Hanson from Marsh & McLennan Agency entitled “Cyber Risk: The Cost of a Breach.”   The presentation included a discussion of how data losses can occur, and the nature of their discovery.  Tips on how to immediately respond to a data discovery were analyzed, along with requirements under the various state and federal laws to notify those whose data has been compromised.  The short and long-term consequences of a breach, including lost income, damage to reputation, regulatory fines, and third and first party losses were presented.  Finally, Chris and Dan discussed a number of ways to minimize risk, including not only insurance options and best…

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29 Apr 2014 Scott Godes to Speak at the NetDiligence Cyber Risk & Privacy Liability Forum June 11-13, 2014

  We are pleased to announce that Scott Godes will be speaking about insurance coverage for cyber risks at the upcoming NetDiligence® Cyber Risk & Privacy Liability Forum, hosted by HB Litigation Conferences, from June 11-13, 2014, at the Hyatt at the Bellevue, Philadelphia, PA.  This promises to be a great conference where you can learn about cyber risks, cyberinsurance, data breaches, data privacy, cyberattacks and more. Download the entire agenda.   Scott will be a speaker on a panel discussing the “Crime Coverage & Cyber Insurance,” presenting at 9 a.m., Friday morning, June 13. The panel will discuss: Coverage in common loss scenarios Discussion of recent claims Court decisions impacting coverage Standard Crime & Cyber policy forms   Register online here.   Scott GodesScott…

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29 Apr 2014 NEWS ALERT: Alabama Supreme Court Withdraws and Re-Issues Decision to Find “Occurrence” for Construction Defect Claim

Last September, the Alabama Supreme Court issued a decision that denied insurance coverage to a homebuilder on the ground that there can be no “occurrence” where construction defect claims do not allege property damage to something other than the home the policyholder built. Owners Insurance Co. v. Jim Carr Homebuilder LLC, 2013 Ala. LEXIS 122, 2013 WL 5298575 (Ala. Sept. 20, 2013). In that decision, the court did not analyze the policy language to distinguish between damage to the insured’s project (which it held did not constitute an “occurrence”) and damage to other property or other parts of the structure (which it held could constitute an “occurrence”).   On March 28, 2014, the Alabama Supreme Court withdrew its earlier decision and issued a new decision…

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29 Apr 2014 General Contractor Held Not to Have Coverage as Additional Insured for Damage Arising Out of its Subcontractor’s “Completed Operations”

  The language contained in policy endorsements dramatically impacts the scope of coverage for additional insureds. In a recent decision, Carl E. Woodward, LLC v. Acceptance Indemnity Insurance, _____ F.3d ____ (5th Cir. 2014), the U.S. Court of Appeals for the Fifth Circuit overruled the district court’s determination that a general contractor was insured as an additional insured on its subcontractor’s commercial general liability (CGL) policy for claims arising out of the allegedly defective work performed by the subcontractor.   The case arose out of a project to build condominiums on the Mississippi Gulf Coast. The general contractor entered into a subcontract for concrete work and was named as an additional insured on the concrete subcontractor’s CGL policy. The subcontractor worked on the project from…

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29 Apr 2014 Indiana Courts Wrestle with “Work” v. “No-Work” Distinction in Waiver of Subrogation Cases

When confronted with the argument that a party has waived its claims under an AIA standard waiver of subrogation provision, Indiana has traditionally applied a “Work” vs. ”No-Work” distinction when evaluating whether a project owner has waived its claims. Despite prior case law applying this distinction, on Feb. 14, 2014, the Indiana Court of Appeals, in Bd. of Comm’rs of the Cnty. of Jefferson v. Teton Corp., 3 N.E.3d 556 (Ind. Ct. App. 2014), held that a work vs. no-work distinction should not apply. Because the project owner failed to secure the insurance required under the contract, failed to give notice to the general contractor of the decision not to secure the insurance, and waived its subrogation claims, the court held the owner breached the…

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29 Apr 2014 5 Tips For Reviewing And Buying Cyberinsurance

Law360 published an article, “5 Tips for Reviwing and Buying Cyberinsurance,” that Scott Godes wrote with tips for buying and reviewing cyberinsurance, with special tips for retailers who are considering buying or reviewing cyberinsurance policies.   With the recent rash of cyberattacks, data breaches and other incidents affecting retailers around the country, it is a good time to turn a careful eye to insurance for cyber and privacy risks. After a privacy, cybersecurity, or data breach incident, retailers may face a host of issues as a result of those incidents. The issues may include individual consumer claims, putative class actions, federal and state investigations and regulatory inquiries, and demands from banks, credit card brands, and/or credit card processors.   The introduction to the article reads:  …

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28 Apr 2014 Indiana Supreme Court Opinion Highlights Importance of Knowing Your Coverage Before You Need It

  In Groce v. American Family Mutual Insurance Co., No. 48S02-1307-CT-472 (Apr. 3, 2014), the Indiana Supreme Court has again held that the rule of caveat emptor, or let the buyer beware, applies to the purchase of insurance coverage.  The Court held that where an agent’s failure to obtain the coverage sought by the policyholder is “ascertainable from the policy itself,” the two-year statute of limitations on the policyholder’s claim against the agent for failure to obtain coverage begins to run when the policyholder receives a copy of the policy.   This rule presents three challenges for policyholders:  (1) many policyholders renew the same coverage year after year, such that the initial failure to obtain coverage could have happened years before the loss for which…

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