Hunton Insurance Recovery Blog

Recent high-profile cases involving Chief Information Security Officers (CISOs) have spotlighted the need for robust directors and officers (D&O) liability insurance tailored to cybersecurity executives. The SEC charges against the former SolarWinds CISO—which were not dismissed in the highly-anticipated decision truncating the SEC’s case against the company—and the 2022 criminal conviction of Uber’s former CISO underscore the growing personal liability risks faced by security leaders.

Real estate investment trust VERIET, Inc. (formerly known as American Realty Capital Properties) announced this week that it agreed to a $765.5 million settlement to resolve shareholder class action and related lawsuits arising from a host of alleged securities violations and accounting fraud at ARCP since the company went public in 2011. Defendants in the class action settlement have agreed to pay more than $1 billion in compensation, including millions from ARCP’s former manager and principals, chief financial officer, and former auditor.

On August 27^th, a California Appellate Court held that an employment practices liability insurance policy’s “wage and hour” exclusion must be construed narrowly to bar coverage only for claims related to “laws concerning duration worked and/or remuneration received in exchange for work.” In doing so, the court made clear that “wage and hour” exclusions do not preclude coverage for claims that go beyond the employee’s actual remuneration received in exchange for work.

A federal court in Pennsylvania has held that Liberty Mutual must defend its insured, Hershey Creamery Company, in an intellectual property infringement lawsuit because the suit raises claims that potentially implicate coverage under the policies’ personal and advertising injury coverages. The court further found that the alleged wrongful conduct was not subject to the policies’ IP infringement exclusion.

A recent ruling by U.S. District Judge Paul Byron of the Middle District of Florida has made clear that the actual words used in an insurance contract matter. The court, in Mt. Hawley Insurance Co. v. Tactic Security Enforcement, Inc., No. 6:16-cv-01425 (M.D. FL. 2018), denied an insurance company’s motion for summary judgment attempting to rely on an exclusion to deny coverage to its policyholder.  The policyholder, Que Rico La Casa Del Mofongo, operated a restaurant establishment in Orlando, Florida, and sought coverage for two negligence lawsuits filed against it for allegedly failing to prevent a shooting and another violent incident on its premises.

In a recent Client Alert, Hunton & Williams insurance attorneys Lorelie Masters, Michael Levine, and Geoffrey Fehling discuss the importance of reviewing historical liability insurance policies and the potential benefit these policies can have on minimizing exposure to environmental hazards. In Cooper Industries, LLC v. Employers Insurance of Wausau, et al., No. L-9284-11 (N.J. Super. Ct. Law Div. Oct. 16, 2017), a New Jersey trial court held that an electrical products manufacturer was entitled to coverage rights under commercial general liability policies issued to a predecessor company for environmental remediation costs stemming from a U.S. Environmental Protection Agency cleanup of a 17-mile stretch of the Passaic River in New Jersey.

A federal district court judge in Connecticut recently agreed that an insurer did not owe coverage under a “claims-made” D&O liability insurance policy where the policyholder failed to give timely notice of a suit arising from a loan default.  Although the ruling killed the claim, the decision also offered guidance on two critical – and commonly cited – exclusions: the “related claim” and “pending or prior claim” exclusions.  The court held that neither exclusion applied under the factual nexus test used by the court, reminding policyholders and insurers alike that ...

The United States Court of Appeals for the Ninth Circuit recently held in Federal Deposit Insurance Corporation v. BancInsure, Inc., that an action by the FDIC against a failed bank’s former directors and officers was excluded by a D&O policy’s “insured vs. insured” exclusion. Against the backdrop of recent decisions finding similar exclusions to be ambiguous as to FDIC actions, such as St. Paul Mercury Ins. Co. v. Federal Deposit Ins. Corp., No. 14-56830 (9th Cir. Oct. 19, 2016) (previously discussed in this client alert), this decision shows how insurers continue to proactively adjust policy language to fit evolving and new exposures.  Policyholders should be doing the same.

On May 20, the Eight Circuit held that the State Bank of Bellingham was covered for losses following the criminal third party wire transfer of $485,000 from the bank to a foreign account. The money was stolen by hackers in 2011 after a bank employee inadvertently left one of three security measures disabled and computers running overnight.