This week, SEC Chairman Jay Clayton issued a statement on Initial Coin Offerings (ICO) addressing the legality, fairness, and risks associated with those offerings. Although the agency’s bulletin was one of many recent public statements by federal agencies on ICOs and cryptocurrencies generally, this new warning highlights additional issues and concerns with the ICO phenomenon that are particularly relevant to insurance coverage.
In a recent brief filed in the Sixth Circuit, American Tooling Center, Inc. argued that the appellate court should reverse the district court’s decision finding no insurance coverage for $800,000 that American Tooling lost after a fraudster’s email tricked an employee into wiring that amount to the fraudster. As we previously reported here, the district court found the insurance policy did not apply because it concluded that American Tooling did not suffer a “direct loss” that was “directly caused by computer fraud,” as required for coverage under the policy. The district count pointed to “intervening events” like the verification of production milestones, authorization of the transfers, and initiating the transfers without verifying the bank account information and found that those events precluded a “finding of ‘direct’ loss ‘directly caused’ by the use of any computer.”
With Brexit approaching in March 2019, uncertainty remains over whether Britain and Brussels will reach an agreement to ensure that UK insurers can continue to pay out on policies after Britain leaves the European Union. The uncertainty tied to Brexit serves as a broader warning to policyholders about the potential pitfalls that can occur when large-scale political or economic change occurs, and how that change can impact an insurer’s indemnity obligations under a pre-existing contract. In the case of Brexit, it remains unclear whether UK and EU regulators will permit the transfer of existing contracts across borders, or whether they will permit a contract formed and regulated under the rubric of one economic area to suddenly be governed by another. Although procedures do exist for the transfer of policies from one insurer to another, the cost of such a transfer is substantial – roughly £1 million ($1.3 million). Pre-Brexit, the UK saw about 20 such transfers per year. Reports suggest that number could increase ten-fold, with the expense to eventually be passed down to policyholders. With increased secession movements around the world in recent years (e.g., Crimea, Catalonia, Scotland, etc.), the insurance ramification of such changes ought to be considered by companies and insurers doing business or insuring business interests in such regions.
Last week Bloomberg Law launched an online “cyber insurance suite” authored by Hunton attorneys, Walter J. Andrews, Sergio F. Oehninger, and Patrick M. McDermott. The online suite, available here and to Bloomberg subscribers, covers all aspects of cyber insurance, including identifying the major cyber risks and liabilities, applying for and obtaining cyber insurance coverage, and submitting claims under cyber coverages. It also contains an overview of case law evaluating coverage for cyber liabilities under traditional insurance policies and under cyber specific insurance policies. Hunton will regularly update the suite as the risks, coverages, and law continues to develop.
A California state court recently rejected an excess insurer’s attempt at an early exit from litigation over whether it owes coverage for cyber liabilities. In that case (previously summarized here), the policyholder, Cottage Health, suffered a data breach resulting in the disclosure of patients’ private medical information. Subject to a reservation of rights, Cottage Health’s primary insurer, Columbia Casualty, paid millions of dollars to help respond to the data breach and to defend and settle a class action lawsuit filed against Cottage Health. Cottage Health’s excess insurer was Lloyd’s.
In Universal Cable Productions LLC, et al. v. Atlantic Specialty Insurance Co., No. 2:16-cv-04435 (C.D. Cal. Oct. 6, 2017), the United States District Court for the Central District of California held that a “war” exclusion barred insurance coverage for losses arising from NBCUniversal’s decision to postpone and relocate production of its action-thriller miniseries Dig, due to an armed conflict between Israel and Hamas. During the conflict, Hamas and other militant groups fired over 4,000 rockets and mortar shells into Israel, forcing NBCU to halt filming in Jerusalem and move production to Croatia and New Mexico.
A recent decision highlights the need for businesses to carefully consider the applicability of insurance coverage across borders. In this case, the owners of an Idaho restaurant traveled to Thailand for business related to the restaurant. While in Thailand, thieves stole uniforms and decorations from the owners, who then submitted an insurance claim. The insurer denied the claim because the policy only covered property within the “coverage territory,” which was limited to the U.S., its territories, and Canada.
In an article in the September issue of ABA Business Law Today, Hunton & Williams attorneys Lorie Masters, Sergio F. Oehninger, and Patrick McDermott discuss the increasing use of blockchain technology, the security of the technology, and insuring against the relevant risks. As they explain, the “potential disruptive uses of blockchain technology in the marketplace have been compared to that of the Internet.” Thus, businesses across industries should consider their insurance would cover risks arising out of the use of blockchain technology. The authors point out that current cyber insurance coverages leave unanswered questions about the extent of coverage for such risks.
In an article that first appeared in Electric Light & Power, Hunton & Williams attorneys Sergio F. Oehninger and Paul T. Moura discuss the growing Electric Vehicle (EV) industry and the risks posed due to the consequential strain on the power grid. As they explain, demand and investment in EVs will likely spur greater demand for supercharging stations that consume significant amounts of electricity. Urban centers and real estate owners are also expected to increase the supply of these stations in order to make these areas more attractive and accessible to EV owners, drone operators, and autonomous vehicle fleets. All of this growth will put increasing demands on electricity supply that can be difficult for businesses to control, leading to grid outages that can cause an interruption in business operations, an inability to access or restore system data, and significant losses of business income. All of this raises the question—Can businesses count on their insurance coverage to respond to the risks posed by EVs?
Update: A federal district-court judge has denied a group of insurers’ motion to dismiss Coca-Cola’s claim for attorneys’ fees in a cross-border insurance coverage dispute.