Four months ago, New York Governor Kathy Hochul signed the Adult Survivors Act (ASA) (S.66A/A.648A), creating a one-year window, beginning November 24, 2022, for adult survivors of sexual assault to bring civil claims against their alleged attackers which otherwise would have been time barred. On September 19, 2022, California Governor Gavin Newsom signed an equivalent law, the Sexual Abuse and Cover Up Accountability Act (AB-2777), which similarly suspends the statute of limitations for civil claims of sexual assault and other vicarious offenses arising out of that conduct starting January 1, 2023. These laws will likely generate a surge of litigation in California and New York, undoubtedly impacting many businesses operating there. Many, if not most, of those companies will look to insurers to furnish legal defenses and to financially support settlements or damage awards based on past policies.
As the preferred place of incorporation for most U.S. companies, Delaware has long been a leader in the development of statutory and common law on corporate governance. In keeping with this role, the Delaware legislature recently amended its corporate code to permit enhanced legal exculpation of officers of Delaware corporations. Let’s look at this amendment and its implications for D&O insurance.
The doctrine of contra proferentem—in which a contractual ambiguity is construed against the drafter—has been a bedrock of New York insurance law since at least the 1880s. In “Contra Proferentem Will Remain Alive and Well in NY,” written for Law360, colleagues Benjamin Tievsky, Scott Greenspan and Stephanie Coughlan explore the history of this doctrine and why policyholders should take heart that the necessary protections of contra proferentem are alive and well under New York law.
As summer turns to fall, football fans around the country are brimming with excitement for the 2022 college football season to kick off. This upcoming season is particularly notable as it marks the second year of what has now been dubbed the “NIL Era” of college football—referring to college athletes’ recently gained ability, following the Supreme Court’s 2021 decision in NCAA v. Alston, to profit off of their own “Name, Image and Likeness” while remaining eligible to play college sports. Shortly after the Alston decision was rendered, the NCAA adopted a new policy that allowed individual college athletes to engage in NIL activities, so long as those activities were consistent with applicable state law. This change led college football recruits and athletes around the country to sign NIL deals ranging from $500,000 to more than $1 million in just the last year. While the dawn of the NIL Era opened the floodgates for college athletes to profit off of their personal brands while they are still in college, college football players in particular remain wary about the all-too-real risk that one errant play could wreck their future earning potential in the professional leagues.
Amazon. Bank of America. Citigroup. Dick’s Sporting Goods. JP Morgan. Kroger. Meta. Microsoft. Procter & Gamble. Target. Walt Disney Company. These are just a few of what is a growing list of companies that have offered to cover costs for employees who may now need to travel out of state to receive abortion care in light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. But companies that are stepping up to further protect their employees’ reproductive rights are choosing to do so in the face of potential public backlash and uncertain legal risks.
IKEA’s Billy bookcase—so popular that one is reportedly sold every 10 seconds—recently got even cheaper, at least for Russians. IKEA is holding a fire sale as the company closes its stores and exits the Russian market. The Swedish furnituremaker’s exit from Russia is just the latest in a string of actions by over 1,000 companies—including Disney, Goldman Sachs, IBM, McDonalds and Starbucks—that are curtailing operations in the country in response to the Russia/Ukraine conflict. As of June 2022, global companies fleeing Russia have reportedly racked up more the $59 billion in losses associated with their departure. Of course, this pales in comparison to the more than 10,000 civilian casualties and $600 billion in economic losses that Ukraine has suffered since the conflict began. But even though the corporate exodus from Russia for many companies is voluntary (and has even been used by some as a positive public-relations spin), Russia has threated to confiscate Russian-based assets of companies from countries that Russia considers hostile to its interests, and U.S. and EU sanctions may practically serve to prohibit some companies from operating in Russia, all of which highlights that additional risks lie ahead.
The past several decades have muddied what once was a clear relationship between policyholders and their insurers. For pre-1987 occurrence-based policies in particular, policyholders face an increasingly familiar scenario: one day, they learn they are no longer dealing with the insurer that sold them insurance. A stranger has crept into the relationship.
On July 13, 2022, the California Second District Court of Appeal issued a published decision reversing a trial court’s dismissal of a policyholder’s COVID-19 coverage claim. In Marina Pacific Hotel & Suites, LLC v. Fireman’s Fund Insurance Company, the Court took two remarkable steps in the context of nationwide COVID-19 litigation. First, the Court recognized that courts must accept as true properly alleged facts when deciding a pleading challenge. Second, the Court did not merely recite the long-established rules of construction for insurance policies that apply in California and most states; rather, it followed those rules by engaging with the actual policy language.
As the number and severity of cyberattacks rise, the importance of insurance coverage to offset resultant loss becomes increasingly important. An opinion issued by the Ohio Court of Appeals is a happy reminder that there may be coverage for cyber-related loss even if you did not buy cyber-specific insurance and that policyholders should review their entire insurance portfolio when confronted by a cyber loss.
The frequency and severity of cyber incidents, particularly ransomware attacks targeting businesses and critical infrastructure organizations, have been on the increase and are unlikely to subside anytime soon. Higher claim counts and loss severity have led to significant and continuing increases in cyber insurance losses. Insurers have made up for this increased risk profile by passing the costs onto consumers in two ways—by both increasing premiums and attempting to narrow coverage.