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Confronting D&O Insurers’ Efforts To Carve Back Subpoena Coverage

Whether a government subpoena constitutes a “claim” is a frequently contested issue between D&O insurers and their policyholders. D&O policies—at least with respect to coverage for private companies and individual insureds at any company—typically define “claim” through multiple subparagraphs: first, a broad and generalized subparagraph that usually references a “written demand for monetary or non-monetary relief,” followed by several narrowly framed subparagraphs that address more specific situations, such as “a civil or criminal proceeding commenced by the service of a complaint or similar pleading.” Most courts have held that generalized language, such as any “written demand for . . . non-monetary relief,” must be read expansively to encompass government subpoenas.

Insurers trying to avoid covering costs incurred by policyholders in connection with government subpoenas sometimes respond to these decisions by arguing that the generalized subparagraph should not be read broadly if one or more subsequent specific subparagraphs reference government subpoenas (or government investigations). For instance, an insurer may argue that a subparagraph expressly providing coverage for government subpoenas issued to individuals implicitly narrows the meaning of “written demand for . . . non-monetary relief” to foreclose coverage for government subpoenas issued to corporate entities. Similarly, an insurer might contend that a subparagraph explicitly providing coverage for subpoenas issued by the Securities and Exchange Commission implicitly narrows the meaning the meaning of “written demand for. . . non-monetary relief” to preclude coverage for subpoenas issued by other government agencies. Policyholders should be prepared to reject such arguments, as they ignore both well-established law regarding the interpretation of insurance policies (which prohibits insurers from limiting coverage by implication) and the typical structure of D&O policies (which contemplates that the subparagraphs defining “claim” will complement, not limit, each other).

First, it is well settled that provisions in an insurance policy setting forth the scope of coverage must be understood in their most expansive and inclusive sense for the policyholder’s benefit, while language that would limit coverage must be narrowly and strictly construed against the insurer (especially where that language would negate coverage provided elsewhere in the policy). Additionally, courts and commentators agree that any limitations on coverage must be stated in clear and unmistakable terms and cannot be extended by implication. Further, to the extent that there are any ambiguities in a policy’s terms, those ambiguities must be resolved in favor of coverage. Given these rules of construction, insurers have no basis to argue that a specific subparagraph in the definition of “claim” implicitly removes coverage that would otherwise be available under the generalized subparagraph.

Second, the multiple subparagraphs defining “claim” are intended to supplement, not restrict, each other. Insurance policies are often drafted with what courts have referred to as a “belts and suspenders” approach, and the definition of “claim” in D&O policies is one such example, where the generalized subparagraph is the belt ensuring coverage for a broad range of losses, whether or not they are enumerated in the specific subparagraphs, and the specific subparagraphs are the suspenders providing additional certainty on issues of particular importance to a policyholder. This additive approach to defining “claim” is also mandated by the use of the connector “or” between subparagraphs, a word that courts have consistently held requires that each of the connected provisions be given separate meanings that do not modify each other. This reading is also consistent with the many court decisions holding that a “written demand for . . . non-monetary relief” includes government subpoenas, as those courts reached their rulings despite the presence of multiple specific subparagraphs in those policies’ definitions of “claim.”

For these reasons, policyholders faced with an insurer attempting to deny or restrict coverage for government subpoenas by implication should be prepared to respond forcefully and push for coverage under the broad and generalized subparagraph that promises coverage for any “written demand for monetary or non-monetary relief.”

Black Coffee Blues

If a new court decision in California is enforced, baristas will have to place another label on cups next to customers’ names—a cancer warning.

Last week, a Los Angeles Superior Court proposed a decision against coffee makers in a lawsuit that has been brewing in courts for years. The Council for Education and Research on Toxics claim that by selling coffee with trace amounts of acrylamide—a chemical classified as a carcinogen, but one that occurs naturally from the roasting process—retailers are exposing consumers to a health hazard. This would ultimately put sellers in violation of California Proposition 65, the Safe Drinking Water and Toxic Enforcement Act, which requires businesses that expose customers to hundreds of chemicals to post warning labels notifying them as such.

In his proposed decision, Los Angeles Superior Court judge Elihu Berle wrote:

“Since defendants failed to prove that coffee confers any human health benefits, defendants have failed to satisfy their burden of proving that sound considerations of public health support an alternate risk level for acrylamide in coffee.”

Should the decision go into effect, businesses that fail to provide the warning notice will be subject to a fine of up to $2,500 a day for each violation.

This news has California’s coffee drinkers, sellers and roasters boiling. After all, people have been imbibing the dark nectar of the gods for hundreds of years and very few, if any, causal connections have been made between it and cancer.

On March 29, the National Coffee Association (NCA) released a statement in response to the ruling and dispelled the notion that coffee can be cancerous:

The industry is currently considering all of its options, including potential appeals and further legal actions. Cancer warning labels on coffee would be misleading. The U.S. government’s own Dietary Guidelines state that coffee can be part of a healthy lifestyle. The World Health Organization (WHO) has said that coffee does not cause cancer. Study after study has provided evidence of the health benefits of drinking coffee, including longevity—coffee drinkers live longer.

Retailers have some options in reaction to the developments. Last year, Bloomberg reported that the “few coffee sellers that have settled rather than keep fighting,” were hopeful that “people in California are so accustomed to seeing the signage that they will tune it out.” In October 2017, Starbucks and some other retailers preemptively placed warnings signs in stores—which may serve as a hedge against fines for millions of cups of coffee sold over several years.

Sellers could create cups specially marked for California sales, which may disrupt its supply chain and increase costs. They could also opt not to sell in California at all, which is unlikely, since the state’s economy is booming with coffee suppliers. With nearly 75% of California’s population being older than age 18, millions of dollars in per-cup sales may hang in the balance.

The decision is not final, however. In the NCA’s statement, president and CEO William “Bill” Murray said: “Coffee has been shown, over and over again, to be a healthy beverage. This lawsuit has made a mockery of Prop 65, has confused consumers, and does nothing to improve public health.”

For further insight into the unintended consequences of Proposition 65 and other well-intentioned regulations visit here.

Proposed Bills Highlight Legal Risks of Sexual Misconduct Claims

In the current climate of sexual harassment incidents being reported in a variety of industries across the country, organizations and their legal departments should be reviewing legislation and considering their legal risks, should they need to defend against sexual harassment or misconduct allegations.

Just this month, in fact, legislation was proposed at state and federal levels to keep employers from trying to silence accusers following mediation and settlements. The

Sen. Kirsten Gillibrand (D-N.Y.)

Huffington Post reported that the bipartisan legislation from Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Cheri Bustos (D-Ill.) would ban employers from holding employees to forced arbitration clauses, which often prevent sexual misconduct survivors from speaking publicly about abuses in the workplace.

Similarly, legislation targeting nondisclosure agreements was recently introduced by state officials in New Jersey, California, New York and Pennsylvania to their respective legislatures.

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These involve standard confidentiality contracts that companies use in the event of a lawsuit so that the terms of a settlement do not become public knowledge.

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Depending on if, and with what wording, these bills are passed it will almost certainly affect companies’ and leaders’ policies and behaviors.

Linda B. Hollinshead, a partner in the employment law practice of Duane Morris told Risk Management Monitor that if confidentiality cannot be guaranteed during a settlement, there could be less mediation and arbitration and more courtroom battles as a result.

“If these bills are passed into law, I will be curious to see how employers change the way they handle these issues—because one of the things you hope to buy when you settle, is quiet,” said Hollinshead. “I would presume that if this is the direction in which things are going, employers may become increasingly more vigilant on preventing [misconduct] in the first place.”

Regarding the New Jersey legislation, advocates seem to be pleased with the bill’s introduction but do not disregard the value confidentiality can provide for a victim of sexual misconduct.

“While we are in favor of the intent of the bill, we do want to make sure survivors have the option to confidentiality,” said Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault. “Many survivors might wish to engage in a nondisclosure agreement, and we need to expand the opportunity for them to have the option to pursue nondisclosure.

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According to XpertHR’s Top 15 Most Challenging HR Compliance Issues for 2018  small, medium and large employers across the country expect sexual harassment to be a top matter of urgency moving forward. The report reminds that misconduct can occur between co-workers, both in and out of the workplace:

Harassment also may involve a wide variety of conduct—physical, written or verbal, as well as conduct over the internet and social media including cyberbullying.

For more legal risks to consider, visit www.rims.org to download the new RIMS Professional Report, The Top 8 Legal Developments You Need to Know About in 2017.

Using ERM to Protect Your Business from The Equifax Fallout

As with many data breaches, the general conclusion of the Equifax attack is that personnel were not aware of the issue beforehand. This conclusion, however, is false.

In early September, I anticipated that a vulnerability in Equifax’s software was known ahead of time, and that this scandal was, therefore, entirely preventable. A month later, the NY Times reported that the Department of Homeland Security sent Equifax an alert about a critical vulnerability in their software. Equifax then sent out an internal email requesting its IT department to fix the software, but “an individual did not ensure communication got to the right person to manually patch the application.”

The Equifax data breach was a failure in risk management. As a credit bureau that deals with the personally identifiable information (PII) of 200 million U.S. customers, Equifax has a legal and moral responsibility to safeguard their customers’ security, and to adopt the proper systems to do so.

For instance, if Equifax had an enterprise risk management (ERM) system in place, the warning from Homeland Security would have been properly recorded and assigned out to the appropriate personnel. This system would have provided transparency over the status of the task in progress, and would have triggered reminders until the vulnerability was patched and verified by the right subject matter expert.

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A Point of No Return

It’s my opinion that this scandal is a point of no return for risk management. While data breaches have abounded in recent years, there has never been one of this magnitude or one that provides every piece of information hackers need to steal our identities. Of course, lawsuits and penalties are piling up around the company’s negligence, but these financial losses are nothing compared to the reputational damages Equifax will suffer—shares fell by 18% following the breach and have yet to fully recover.

What makes this scandal so unique, and therefore a point of no return, is that these reputational damages reach far beyond Equifax. Consumers can’t always choose whether they’re a customer of Equifax, but they can choose whether to do business with the institutions that gave away their information to Equifax in the first place.

I also believe that consumers’ outrage with this scandal will cause them to shift their money, loyalty, and trust to institutions that can demonstrate effective risk management. CEOs and boards of every company will have to prove their organizations have adequate enterprise risk management systems in place. They’ll find that more effective risk management and governance programs are necessary to keep their market shares up and their reputation clean.

Where to Go from Here

While this breach may appear to be an event of the distant past, we are in the eye of the storm. Stolen information can lie dormant for months or years as criminals wait to make their move, and when they do, you’ll have either taken this period of calm as a chance to forget the scandal, finding yourself ill-prepared, or a chance to get to higher ground, finding yourself fully protected.

To protect themselves, businesses must:

  • First, to determine where to focus your security resources, recognize that people, processes, and procedures are now the biggest risks. Businesses need to perform risk assessments across all departments to determine who has access to sensitive information and authentication processes, and what the business impact would be if these employees were to be impersonated.
  • Next, to address these risks, businesses must rewrite their procedures for authenticating the people involved in sensitive requests and actions both verbally and electronically. With so much PII now in the public domain, it is no longer safe to rely on traditional authentication based on these pieces of information.
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    For example, the security question “What was your first car?” is not effective because the answer is now easily accessible.

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    A more effective question would be “Who was your best friend in elementary school?”

  • Finally, it is important to keep your third-party vendors in mind. Vendors often have access to sensitive information and processes, which could have an enormous impact on your company. It is crucial, therefore, to extend your internal authentication procedures out to your third parties so that they are authorizing sensitive requests and actions as securely as your own organization.

Our world, including the business world, is becoming increasingly transparent, meaning it’s up to you to act with integrity and protect your stakeholders. Keeping the Equifax data breach in mind, along with enacting these tactical steps, will help you stay ahead of the competition and out of glaring social media headlines.