Cannabis is now fully legal in ten states plus the District of Columbia, and medical marijuana is legal in 23 states. Despite growing acceptance among states, cannabis remains illegal federally under the Controlled Substances Act of 1970 as a Schedule 1 substance, which has made oversight and regulation of the industry decentralized and in some instances non-existent. The psychoactive effects of cannabis, coupled with limited regulation, imposes increased risk of product liability claims. To mitigate this risk, industry members should take steps to self-regulate.
Your factory is flooded and manufacturing line destroyed. A hacker breaks into your computer system and erases customer data even though you paid the ₿1,000 ransom in bitcoins. A jury just returned a $5 million verdict against your company and an employee who got into an accident while texting and driving to a client meeting. These may all be insured events, but how long can your business survive while you wait until your insurance company decides whether to pay your claim? Continue reading →
It’s a familiar story to anyone involved in insurance claims. A policyholder is sued and tenders the claim to its insurer. The insurer agrees to defend subject to a reservation of rights, but it also asserts that policy exclusions may ultimately preclude coverage. While the underlying litigation is ongoing, the insurer files suit against the policyholder seeking a declaration that it does not have a duty to indemnify if liability is established against the policyholder in that litigation.
A little under two years ago, we wrote about the fatal Oxford comma—you know, the one that comes before “and” in a list—and the impact of its omission on a court’s interpretation of a Maine employment statute. The court effectively gave a $10 million lesson in grammar and ambiguity, but its holding was not revolutionary to a coverage attorney.
The world of patent defense insurance is evolving. What once was governed by a routine part of the “advertising liability” section of the Commercial General Liability policy is now the focus of specialized insurance products, the contours of which are still being defined.
When adding new or additional layers to an insurance program, policyholders are often asked to sign a “warranty letter” providing comfort to the prospective insurer that the policyholder is not aware of impending claims. Typical warranty letters include both subjective and objective representations, indicating that the policyholder has both no actual (or subjective) knowledge of any impending claims and no reasonable (or objective) expectation that such a claim will arise. If a claim later arises, these warranties may provide a basis for full rescission of a policy or create an exclusion for claims that the policyholder knew or should have known would be filed. And when a warranty is poorly worded or overly broad, it may give rise to a morass of coverage litigation.
The Supreme Court of Texas delivered good news to policyholders insured under a “Joint Venture Provision” endorsement commonly used in the oil and gas industry. In Anadarko Petroleum Corp. v. Houston Casualty Co.—a case arising from the 2010 Deepwater Horizon disaster—the court held that insurers assumed the obligation to reimburse the full amount of a joint venture partner’s defense costs, rejecting the insurers’ argument that their obligation was reduced by the “scaling” language of a Joint Venture Provision. As a result, the court held the insurers liable to Anadarko for over $100 million in defense costs, not just the $37.5 million they had already paid.
It’s time-proven advice: Never underestimate the power of an apology. This is true even in a legal context, and especially during a corporate crisis—an event with the potential to materially harm a company’s reputation or bottom line due to alleged negligence, malfeasance or other liability-driven factors. But even when an apology is a sound crisis and liability management tool, insurance and legal defense considerations can complicate its use. Policyholders are well-advised to proceed with care—and should neither automatically rule out an apology to relevant stakeholders and victims, nor issue apologies without fulsome consideration of the potential insurance and legal defense implications.
Have $57 million (or more) to spare? You’re going to need it if you run afoul of the EU’s General Data Protection Regulation (GDPR) without cyber insurance.
In late January 2019, the French data protection authority, CNIL, imposed a fine of €50 million—or roughly $57 million—on Google for violations of the GDPR. The fine is the largest imposed to date under the GDPR, since it came into effect in May 2018. The Google fine highlights a couple of things: the GDPR has teeth, and regulators in the EU won’t hesitate to enforce the regulation. Possibly more frightening to companies subject to the GDPR is that the fine was not imposed because of any data breach or disclosure of sensitive information but, rather, on account of Google’s ordinary data privacy practices.
Does the coverage in commercial general liability (CGL) policies for violations of the right to privacy extend to unwanted intrusions, or is it limited to the disclosure of personal information to a third party? On a recent request for clarification from the U.S. Court of Appeals for the Ninth Circuit in Yahoo Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, the California Supreme Court may be poised to answer this question under California law, which could have wide-ranging effects on companies seeking CGL coverage for Telephone Consumer Protection Act (TCPA) claims.