Cyber liability insurance is a relatively new product and case law interpreting the policies is only now just developing. However, even at this relatively early stage, there have been some important coverage decisions, and more are coming, as more coverage disputes arise. In the following guest post, Roberta Anderson takes a look at the steps companies can take to decrease the likelihood of a coverage denial and of litigation. Roberta is an Insurance Coverage partner in the Pittsburgh office of K&L Gates LLP and co-founder of the firm’s global Cybersecurity, Privacy and Data Protection practice group. A version of this article previously appeared on Law 360.
I would like to thank Roberta for her willingness to publish her article on my site. I welcome guest posts from responsible authors on topics of interest to readers of this blog. Please contact me directly if you would like to publish a guest post. Here is Roberta’s article.
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Many insurance coverage disputes can be, should be, and are settled without the need for litigation and its attendant costs and distractions. However, some disputes cannot be settled, and organizations are compelled to resort to courts or other tribunals in order to obtain the coverage they paid for, or, with increasing frequency, they are pulled into proceedings by insurers seeking to preemptively avoid coverage. As illustrated by CNA’s recently filed coverage action against its insured in Columbia Casualty Company v. Cottage Health System,[i] in which CNA[ii] seeks to avoid coverage for a data breach class action lawsuit and related regulatory investigation,[iii] cyber insurance coverage litigation is coming. And in the wake of a data breach or other privacy, cybersecurity, or data protection-related incident, organizations regrettably should anticipate that their cyber insurer may deny coverage for a resulting claim against the policy.
Before a claim arises, organizations are encouraged to proactively negotiate and place the best possible coverage in order to decrease the likelihood of a coverage denial and litigation. In contrast to many other types of commercial insurance policies, cyber insurance policies are extremely negotiable and the insurers’ off-the-shelf forms typically can be significantly negotiated and improved for no increase in premium. A well-drafted policy will reduce the likelihood that an insurer will be able to successfully avoid or limit insurance coverage in the event of a claim.
Even where a solid insurance policy is in place, however, and there is a good claim for coverage under the policy language and applicable law, insurers can and do deny coverage. In these and other instances, litigation presents the only method of obtaining or maximizing coverage for a claim.
Continue Reading Guest Post: Five Tips for Success in Cyber Insurance Litigation
One of the controversies in which the SEC recently has found itself involved has been the agency’s use of its own in-house administrative tribunals, where some believe that the agency has an unfair advantage. The increased use of its administrative courts has also drawn court challenges. In the following guest post, Elan Kandel, a Member at the Cozen O’Connor law firm, and Neil Lipuma, Senior Vice President, Underwriting Leader—Financial Services of Hiscox USA take a look at the controversies surrounding the SEC’s use of its administrative tribunals and examines the recent court challenges to the agency’s practices.
In a ruling that could provide an important boost future consumer data breach class action litigation, the Seventh Circuit has reinstated the Neiman Marcus data breach lawsuit, ruling that the district court erred in concluding that the plaintiffs’ fear of future harm from the breach was insufficient to establish standing to pursue their claims. As Alison Frankel said about the appellate court’s ruling in her July 21, 2015 post on her On the Case blog entitled “The Seventh Circuit Just Made it A Lot Easier to Sue Over Data Breaches” (
As I have previously noted on this blog (most recently 
One of the most significant areas of litigation in the employment practices liability arena has been the employee lawsuits seeking damages for employer violations of federal and state wage and hour laws. But while these kinds of lawsuits remain important, many of the trends in the settlements have shifted in the most recent years, according to a recent study from NERA Economic Consulting. The July 14, 2015 report, entitled “Trends in Wage and Hour Settlements: 2015 Update,” can be found 
While the SEC’s Dodd-Frank whistleblower program has drawn significant attention, the fact is that the program has gotten off to a slow start. As of the end of the last fiscal year, the SEC had during the program’s history received a total of 10,193 whistleblower reports, but had made only 14 whistleblower awards. (Indeed, the agency had rejected more award requests – 19 – than awards given.) While the agency’s deliberate pace in making awards seems unchanged, the agency continues to make substantial awards and the aggregate value of the awards is gradually becoming quite considerable.
One of the great curses of the corporate litigation environment in recent years has been the proliferation of merger objection suits, the incidence of which has gotten to the point that now 
The recent annual trend toward declining numbers of corporate and securities lawsuit filings continued in the first half and second quarter of 2015, although second quarter activity did increase slightly compared to the prior quarter, according to a report from the insurance industry information firm, Advisen. If the increase in the second quarter numbers compared to the first were to continue for the remainder of the year, the number of new corporate and securities lawsuits during the year could see an annual increase for the first time in four years. The July 15, 2015 Advisen report, entitled “D&O Claims Trends: Q2 2015” can be found 
The D&O Diary finished up its recent European sojourn with a weekend visit to Prague. After a four-hour train ride northeastward from Munich through forests, farm fields, and low mountains, and a final stretch through the 
The D&O Diary is on assignment in Europe this week, with the first stop in the southern German city of Munich, to attend Munich Re’s Global Casualty Claims Conference. This trip represented my first ever visit to Europe during the summer months. My prior visits have all taken place during other months of the year. Here’s what I discovered about visiting Europe in July; it is a lot more comfortable walking a city in the summer warmth than in colder months, and, even more importantly, a summer visit allows for very late evenings sitting at outdoor cafes and beer gardens in the warm and comfortable twilight that does not turn to darkness until well past 10:00 pm.