As with past banking crises, the recent failures of Silicon Valley Bank and Signature Bank will likely put the directors and officers of affected banking institutions in the proverbial crosshairs as regulators second-guess their decisions and look for potential sources of loss recovery.

In a landmark decision, the Illinois Supreme Court holds that every individual scan or transmission of biometric data made without the proper disclosures amounts to a separate violation of the Illinois Biometric Information Privacy Act.

This series of updates contains information regarding issues and trends facing the retail industry during the holiday season. The list highlights all of our published updates on this topic.

Forfeiting insurance coverage on a covered claim is a quick way to ruin the holidays. Every year, tens of thousands of covered claims are left unpaid due to clerical mistakes by policyholders or their brokers.

Following the Illinois Supreme Court’s 2021 ruling in West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978, which we covered in detail, a Chicago-based federal court recently handed another insurance coverage victory to businesses facing class actions under the Illinois Biometric Information Privacy Act (BIPA).

A Colorado state court recently joined a growing chorus of courts across the country rejecting insurance companies’ arguments that there is no coverage for COVID-19-related losses and costs under commercial property insurance policies because COVID-19 cannot cause “physical loss or damage” to property as a matter of law.

When are communications with counsel that are for both legal advice and business purposes protected by the attorney-client privilege?

The deluge of lawsuits brought under the Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14 et seq. over the past several years has presented a challenge to companies operating in Illinois.

Policyholders with COVID-19 insurance claims may not be aware that insurance policies limit  the time they have to bring a lawsuit against their insurance company.

In this AI Speaks podcast episode, Partners Jim Davis and Brad Dlatt sit down with special guest expert Ruth Kochenderfer of Marsh USA to talk about the impact that AI and the internet of things is having on the insurance industry, the drafting of insurance policies, and privacy protections.

Since the start of the pandemic, hundreds of businesses of all sizes have been forced to file lawsuits against their property insurers for failing to honor their contractual obligations to provide business interruption, extra expense, civil authority, and other coverage for the substantial losses caused by the COVID-19 pandemic.

Hundreds of COVID-19-related class action claims have been filed in state and federal courts throughout the country.

Due to the COVID-19 pandemic, institutions of higher education are facing significant revenue challenges and incurring extra expenses for which their insurance programs should provide relief.

This update provides some recent lessons learned with remote depositions that apply to both those who take and defend remote depositions.

The insurance industry in the United States continues to thwart legislative solutions for disputed COVID-19-related losses under property/business interruption policies and resists efforts to group lawsuits together into multi-district federal litigation or class actions.

On this episode, we are joined by Deborah White, president of the Retail Litigation Center (RLC) and senior executive vice president and general counsel of the Retail Industry Leaders Association (RILA). Deborah provides insight and analysis regarding the retail industry’s varied and innovative response to the pandemic, including how large retailers deal with the patchwork of evolving state and local regulations and how they are innovating at breakneck speed to meet consumer demand while maintaining safety for employees, suppliers, and customers.

On this episode, we are joined by Perkins Coie Partner David Neff, among the most experienced hotel bankruptcy and restructuring lawyers in the country. We discuss the ways COVID-19 causes financial distress to businesses, the parties involved, and why it may take some time before companies become distressed. We also will address new rules that streamline the bankruptcy process for smaller businesses to help them survive, and insurance coverage issues arising in these distressed situations.

In this podcast, Perkins Coie’s Insurance Recovery Partners Jim Davis and Norton Cutler interview special guest Dr. John Richard Corboy, M.D., who provides an overview of the scientific understanding of COVID-19.

Perkins Coie’s Insurance Recovery Attorneys Jim Davis and Brad Dlatt interview special guest Perkins Coie Labor Partner Heather Sager, who is counseling companies operating during the Covid-19 pandemic. Topics include how businesses find out if they are allowed to re-open, what employers need to know about having employees return to work, the use of health screenings, privacy issues arising from new procedures, the implication for insurance, and a brief legislative update.

Speakers discuss preparing COVID-19 business interruption insurance claims. Topics include what is happening on the ground, the use of the pollution exclusion to deny coverage for losses caused by COVID-19, real world claim preparation and management issues, and an update on pending legislation that may impact available insurance coverage.

Multiple insurance policies may ultimately be triggered as a result of the global Covid-19 pandemic. Companies should keep detailed records now to assist with any future insurance claims. Here is a preliminary documentation checklist which will aid companies in maximizing their insurance once claims are filed.

On this podcast the speakers discuss Business Interruption and Civil Authority Claims for Covid-19 and specifically address tips for providing notice, the amount and types of claims policyholders are filing, initial reactions and requests for information from the insurance industry, similar historical events and the barrage of expected insurance litigation coming our way

Speakers discuss the COVID-19 crisis, staying at home, the types of insurance affected by the crisis, early lawsuits, tips for policyholders to preserve claims, the current trends in the insurance marketplace, including renewals that just happened, and legislation in the works that might force insurers to provide business interruption coverage.

Recognizing the high volume of COVID-19 content being published, Perkins Coie developed a one-stop, integrated resource page that addresses key legal and business considerations for companies across essential business areas, from insurance coverage and labor and employment, to privacy and security, corporate governance, tax, construction, supply chain, and more.

In response to the rapidly changing and unpredictable business environment resulting from the novel coronavirus (COVID-19) outbreak, underwriters of representation and warranty insurance (RWI) policies are introducing broad exclusions from business interruption or business downturn losses arising out of or relating to COVID-19, and in some cases, any related government or regulatory response.

This practical checklist, compiled by Perkins Coie’s Insurance Recovery team, outlines key insurance coverage considerations for businesses responding to the Coronavirus (COVID-19). View Checklist

The coronavirus pandemic has left employers with many legal questions during this challenging time.

As the coronavirus (COVID-19) outbreak continues to evolve, more businesses are feeling the impact. 

The start of 2020 has brought uncertainty for tech businesses as individuals in the global health and business communities grapple with trying to understand and contain the deadly new coronavirus.

The Perkins Coie Tech Risk Report Quarterly Roundup is a compilation of blog posts published over the previous quarter that provide analysis and interpretation on insurance issues related to cyber coverage, privacy, virtual currency, bitcoin, cryptocurrency, TCPA and consumer protection, among other related topics. 

The ability to build and maintain strong relationships with business partners and vendors is an essential requirement for any business seeking long-term success.

As businesses gear up for the busy holiday shopping season and prepare product lines for the new year, manufacturers and distributors of consumer products must be ready to manage new risks that are likely to appear in the new year. 

An examination of whether climate change is a risk that can, and should, be covered by insurance.

The 1st District Appellate Court recently delivered a resounding victory for corporate and individual insurance policyholders in Illinois, reaffirming that insurers that have a duty to defend claims or suits brought against their insureds will not be rewarded by Illinois courts for refusing to honor that obligation in a timely fashion.

The South Carolina Supreme Court delivered a gift to insurers facing bad faith claims in that state. The court determined that, where a policyholder brings a bad faith claim against its insurer and the insurer answers the claim by denying liability, the policyholder’s right to obtain discovery of the insurer’s attorney-client privileged communications concerning the insurer’s handling of the claim must be determined on a case-by-case basis.

Perkins Coie is proud to announce that the third edition of A Manufacturer's Guide to Product Liability Law in the United States is now available as an e-book and in a Chinese printed version, as well as the original English printed version.

Federal environmental law governing coal ash ponds used by many regulated electric utilities remains uncertain after a flurry of recent activity at the Environmental Protection Agency and in the courts.

Protecting Innovative Companies Against 21st Century Risks

Although 3-D printing has been around since the 1980s, its tremendous growth in commercial and private applications in recent years may leave some companies exposed to new liability, including intellectual property claims and product liability claims, among others.

Slapping insurers with breach of contract and bad faith, Washington state’s highest court recently found that a general liability policy’s so-called “absolute” pollution exclusion may not be so absolute.

Computer systems around the world have been impacted by the largest cyber-extortion attack in history.

This update has been republished in Computerworld on 05.30.2017, "Answering the WannaCry Wake-up Call."

Former Deputy Attorney General Sally Yates issued a memorandum (the Yates Memo) in September 2015 setting forth guidance on how the U.S. Department of Justice would handle future corporate investigations and, to the extent practicable, pending ones.

After committing in litigation to a joint schedule to conduct rulemaking for financial assurance requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the EPA proceeded with its first regulatory proposal for the hardrock mining industry by releasing its proposed rule on December 1, 2016.

As retailers enter the holiday season amid a period of increased compliance lawsuits related to the ADA, we offer some timely ways to steer clear of potential ADA pitfalls.

Being aware of your company’s new and changing risks is critical for sound risk management. As the year progresses, we have identified growing risks facing companies, and their directors and officers, that are likely to impact policyholders.

Traditional employment practices liability (EPL) and directors’ and officers’ (D&O) insurance may not apply today to cover wage-and-hour liabilities, an issue we detailed in the first and second installments of this series.

As discussed in the first installment of our three-part series on insurance protection against wage-and-hour claims, policyholders have looked to two types of traditional insurance for protection against employment liabilities: employment practices liability (EPL) and directors’ and officers’ (D&O) insurance.

Today, businesses and their executives face an increased threat given the personal liability for officers, directors, managing agents and others as discussed in our recent alert, “California’s Fair Day’s Pay Act May Impose Liability on Individuals for Wage Claims.”

Today, on March 29, 2016, the New York Court of Appeals, New York’s highest court, will hear oral argument on two significant allocation questions that could affect policyholders across the country.

An extended version of this Update was published in Law360 on 04.06.2016.

ABA Coverage Journal

Republished in Social Science Research Network (SSRN) eLibrary

The Department of Justice (DOJ) has once again postponed its proceeding to amend regulations that would spell out the obligations of retailers, hotels, restaurants, places of entertainment and other businesses to make their websites accessible to individuals with disabilities under the Americans with Disabilities Act (ADA).

As the holidays rapidly approach, it is a perfect time for retailers to review their insurance policies and understand the extent of their coverage. Seasonal hires, new products and revisions in services may expose retailers to uncovered risks.

Massive explosions occurred at a warehouse in Tianjin, China, in August 2015, that left hundreds of people dead or injured and destroyed much of the city’s port facilities. Tianjin is located in the industrial north of China and is a critical transit point for many global industries, including electronics, automotive, aerospace, petrochemicals and manufacturing equipment.

In this final installment of “I Got You Covered,” we provide a number of risk management tips with a focus on additional insured status. Although this list isn’t comprehensive, it covers the major risks that an additional insured should consider to actively protect its company and its success.

In this installment of “I Got You Covered,” we discuss the benefits and drawbacks of additional insured status.

“I got you, Babe.” It’s not just the title of a 1965 Sonny and Cher hit—it also aptly describes the relationship between a named insured and its additional insured. To clarify, an additional insured may be able to access the coverage provided by the named insured’s liability policy if the additional insured is potentially liable for a claim that relates to the named insured’s operations or premises.

Insurance companies typically argue that a policyholder’s liabilities arising out of a product recall are only covered, if at all, under a specialized product recall policy, and not under more widely purchased standard-form general liability policies.

Drones, or unmanned aerial vehicles (UAVs), promise to revolutionize not just commerce but the insurance markets as well.  In 2014, the European Commission estimated that, within 10 years, UAVs will represent 10% of the global civil aviation fleet.  

A simple yet highly effective and increasingly common cyber scam, based on social engineering and playing on fear, the desire to be helpful and other emotions, has caused U.S. companies of all sizes to lose millions of dollars in recent months.

On February 15, 2015, the FAA issued its long-awaited notice of proposed rulemaking on small unmanned aerial vehicles (UAVs). Currently, federal law prohibits commercial use of UAVs without advance approval, typically through the so-called Section 333 approval process.

With major data breaches again making news, it is important for corporate policyholders to keep abreast of insurance developments in this emerging and fast-moving area. In this update, we provide some thoughts on cyber liability and reputational insurance trends to watch in the months ahead.

As the northeastern United States digs out from Winter Storm Juno, it is time for businesses and property owners to assess any damage suffered from the storm and analyze their property insurance policies in order to properly submit their claims and maximize their insurance recovery.

Reacting quickly to the concerns of the business community and insurance policyholders, the 114th Congress voted overwhelmingly to approve the Terrorism Risk Insurance Program Reauthorization Act of 2015 (TRIA).  On January 12, 2015, President Barack Obama signed the TRIA into law.

The U.S. Congress failed to reauthorize the Terrorism Risk Insurance Program Reauthorization Act (TRIPRA) prior to adjourning on December 16, 2014. The new 114th Congress will not convene until January 6, 2015 and may not immediately begin the consideration of TRIPRA for several days thereafter.

During this busy holiday shopping season, retailers may end up facing litigation under the Telephone Consumer Protection Act (TCPA) for sending advertisements to consumers’ cell phones.

The Department of Justice takes the position that websites are covered by the Americans with Disabilities Act (ADA).  More claims are being filed by plaintiffs targeting retailers whose websites are inaccessible to consumers who are blind or have low vision.

Reports are coming in from Baja California about substantial damages from Hurricane Odile. As of September 15, 2014, the airport in Cabo San Lucas is closed, as are roads up and down the Baja peninsula.

As the Napa Valley community begins the process of repairing damage and healing from injuries and losses related to the earthquake that struck on August 24, 2014, we extend our heartfelt wishes to those affected by the natural disaster.

With the globalisation of the world economy, private arbitration is fast becoming the favoured forum to resolve international business disputes, with London being a primary venue.

In recent months, the Securities and Exchange Commission (SEC) has announced and implemented policy shifts that could compromise the availability of directors’ and officers’ (D&O) insurance coverage for entities and individuals. First, after years of not requiring admissions of wrongdoing unless there was an underlying criminal conviction, the SEC will no longer agree to “no admit, no deny” settlements in cases involving “widespread harm to investors” or “egregious intentional misconduct.”

Many businesses in Oklahoma have been impacted by the devastating tornado that hit that state on May 20, 2013.  Early estimates indicate the tornado caused upwards of $2 billion in damage.  Numerous national and local businesses and other entities, ranging from retailers to schools and hospitals, reported significant damage and an interruption in their business operations due to the tornado.

For the first time, online retail sales exceeded $1 billion on Black Friday and reached nearly $1.5 billion on Cyber Monday this year.  Analysts expect this increase in e-commerce to continue, and Forrester Research estimates that online sales this holiday season will exceed $68.4 billion—a 15 percent increase over 2011.

Many businesses throughout the United States—and possibly worldwide—may experience the effects of the devastating superstorm that hit the Eastern United States on October 29 and 30, 2012.  Early estimation indicates that the storm caused upwards of $20 billion in property damage and another $10 billion to $30 billion in lost business.

On August 9, 2012, the California Supreme Court granted corporate policyholders the right to fully access and to recover from insurance policies spanning multiple policy periods for claims involving damage that progressed over those periods.  In California v. Continental Insurance Co., No S170560 (Cal. Aug. 9, 2012), the state’s highest court approved an “all-sums-allocation-with-stacking” rule permitting a policyholder to obtain coverage from the sum total of insurance that the policyholder purchased throughout the years or decades that damage continued. 

Increased store traffic, the shift in management's attention to keeping stock available and the barrage of seasonal employees create an environment ripe for crimes of opportunity such as employee theft.

All of the tools and tricks you will use this holiday season to catch consumers' eyes and capture their dollars will likely involve intellectual property (IP) rights. New products (patents? copyrights?) with catchy names (trademarks?) and bright packaging (trade dress?) supported by huge advertising campaigns (more copyrights?) are distributed through new channels to attract new customers (trade secrets?). You've registered your trademarks and copyrights and thought about whether you have any patentable inventions. But your IP rights are implicated in many other areas of your business, especially during the holiday season.

Following the recent California Supreme Court’s decision in Pineda v. Williams-Sonoma Stores, Inc., 2011 WL 446921 (Cal. Feb. 11, 2011), numerous class action lawsuits have been filed under the Song-Beverly Credit Card Act of 1971, Cal. Civ. Code §§ 1747 et seq. ("Credit Card Act"), a state statute designed to protect the personal privacy of credit card users.  These lawsuits expose California businesses to considerable defense costs and the potential for substantial damages.  Law360 reports that in the wake of this ruling at least 30 proposed class actions have been filed in California, and many more are on the way.  That’s the bad news. The good news is that these claims may be covered under your Commercial General Liability ("CGL"), Errors and Omissions ("E&O"), or Directors and Officers ("D&O") Liability insurance policies.

While the downturn in the economy has adversely affected the sellers of directors’ and officers’ liability insurance – much as it has companies in all sectors of the economy – investing in D&O insurance is still a wise course of action.  This Update offers nine suggestions for ensuring that a company’s directors and officers are adequately protected in this environment against potential liabilities that D&O insurance normally would pay.

COVID-19 caused devastating financial losses for many businesses. Where do insurance coverage issues stand one year into this crisis? Are policyholders being paid? Are carriers still “investigating?” Do you need to do anything now to protect your company? Selena J. Linde and Vivek Chopra answer these questions in this one-hour briefing.

Hurricane Laura’s devastating landfall caused tremendous property damage. 

On this webinar we delved into the complicated legal issues surrounding COVID-19 testing in the workplace. As companies consider on-site testing as one tool to safeguard their employees and customers from COVID-19 risks, a variety of legal risks need to be addressed.

This webinar discussed the many matters that businesses in Oregon are addressing as a result of the COVID-19 pandemic. Our attorneys provided answers to questions we have been receiving from our clients.

Leading during a health pandemic requires strength, vision, and an ability to look around corners. Join us for a two-part webinar series that will highlight a variety of risks and opportunities that company leaders should be aware of as we navigate through major business changes.

Join us Wednesday, March 25, 2020, as we address how recent actions may affect the possibility of insurance coverage for business income losses under property policies. Coronavirus loss estimates now exceed $4 trillion and continue to rise.

Coronavirus losses mount as businesses cancel large events and supply chains are disrupted. Every industry is potentially affected, but are the losses covered by insurance? The language of your insurance policies and undeveloped case law will ultimately answer that question.

As U.S. officials encourage Americans and American companies to prepare for, and as some companies are already dealing with significant disruptions to their daily routines, employers need to keep in mind the current state of applicable employment laws when implementing a response.

What you need to know now about your current coverage and what you need to know now to protect your company at renewal.

Perkins Coie’s CCPA Week
This webinar explores the steps policyholders can take now to address coverage issues presented by the CCPA. Topics will include the types of policies that may respond to CCPA claims, how to negotiate favorable terms in your insurance policies and tips on loss management strategies.

Join Perkins Coie and Aon for two insurance coverage seminars on directors and officers insurance and mergers and acquisitions representations and warranty insurance.

Perkins Coie's Insurance Recovery attorneys addressed questions and coverage issues businesses need to understand in order to respond quickly to damage caused by hurricanes and other natural disasters.