Insurance Questions, Lawsuits Arise in Wake of Target’s Data Breach - By Young Ha

24/12/2013 21:07

U.S. retail giant Target Corp. is busy dealing with the aftermath of the massive data breach that exposed account details of some 40 million credit and debit cards.

Already, at least two lawsuits seeking class-action status have been filed against Target. And attorneys general from New York, Massachusetts and Connecticut have contacted the retailer seeking more information about the breach and the steps being taken by Target to protect consumers.

In New York, the state’s Attorney General Eric Schneiderman said there are already reported incidents of identity theft affecting New York consumers.

And according to media reports, these stolen consumer data are already flooding the black market. Credit and debit card accounts stolen from Target’s data breach are being sold on underground black markets for anywhere from $20 to more than $100 per card, reportsKrebsOnSecurity, a security news website.

In such data breach cases, there are several policies that are important for the companies to look at as possible insurance coverages to be triggered, according to attorneys who spoke with Insurance Journal.

Target declined to comment on an inquiry regarding its insurance coverage. But attorneys observed many companies are purchasing insurance coverages to protect against such data breaches.

“A lot of companies are purchasing specialized cyber insurance policies so those have to be examined,” said Joshua Gold, a New York-based attorney and shareholder at law firm Anderson Kill. Gold regularly represents corporate policyholders in insurance coverage matters. Such cyber insurance can be tailored to cover a wide range of expenses, even costs for forensic accounting, credit monitoring, crisis management, notification and setting up call centers to respond to consumer inquiries.

There could also be some measure of protection under traditional policies like the commercial general liability policy, even though finding coverage under traditional policies may be getting increasingly more challenging as the industry continues to add data breach-related exclusions. Most recently, Insurance Services Office Inc. (ISO) filed this year data breach exclusion endorsements concerning its standard-form primary and excess/umbrella commercial general liability policies, to be effective next May.

Commenting on a California lawsuit seeking class-action status, William Um, a policyholder counsel at Hunton & Williams in Los Angeles, said there are allegations that there was a violation of privacy rights. “And those traditional general liability policies will provide that type of coverage and at least trigger the carrier’s duty to defend in that instance,” he said. In the lawsuit, a Target customer in California has alleged invasion of privacy and negligence. (A copy of the complaint is shown at the end of the article.)

“Obviously you need to be mindful of exclusions that are out there. But I would say this falls within the personal injury line of coverage under a general liability policy,” said attorney Um, who has handled a variety of insurance coverage disputes involving class actions, data breach and privacy issues, directors’ and officers’ liability, and other matters. He is not involved in the Target lawsuit.

And based on allegations in the California lawsuit, there is also a potential for coverage under a directors’ and officers’ policy, the attorney said. He observed that the lawsuit appears to include allegations about Target’s failure to act and allegations of “wrongful acts” that would be covered under traditional D&O entity coverages.

In such data breach cases, crime insurance is another possible place to look at, attorney Gold added. “We represented a retailer some time ago and they had a computer hacking breach. We were able to get their insurance coverage for them under a crime policy,” he said.

Defense Costs

As Target grapples with the aftermath of the massive data breach, the retailer could face a lot of expenses incurred for defense costs, Um said. “I think that’s going to be the biggest cost out there because you are going to hire lawyers to defend the lawsuits, and you are going to have to have lawyers out there assisting with the appropriate notifications and responses,” he said.

One question, the attorney said, is whether the plaintiffs in Target lawsuits can manage to overcome what has been difficult in the past — namely, alleging actual compensable damage and getting over the hurdle of showing that individuals have been harmed beyond just their personal information being out in the public.

Um also noted how quickly these lawsuits are getting filed after such incidents occur and how sophisticated the lawsuits have become. He said the California lawsuit was filed on the same day that the media outlets began reporting the data breach.

The lawsuit in California, which was filed in federal court in San Francisco, tries to allege as much damage as possible and with broader allegations, Um said. The lawsuit makes very broad allegations about specific negligent acts on the part of Target, he said.

Technology-Related Claims

Attorney Gold from Anderson Kill also said technology-related insurance claims tend to receive added scrutiny.

“It’s hard to say how each claim is going to be handled because it really does depend upon what insurance policies the policyholder has in place, the circumstances of the loss, and lots of other factors,” he said. But technology-related claims tend to draw added scrutiny from insurance companies, and the more serious the claim, the tougher the insurer could get in paying it, he said.

Gold said he and his firm had cases for policyholders where cyber-specific languages were included into more traditional insurance policies. In terms of the newer, standalone cyber coverages, fights have mostly been “behind the scene” so far, he said.

“I am only aware of one case that’s been litigated involving an actual cyber policy where the insurance company is denying coverage and the policyholder and the insurance company ended up in litigation. I don’t think there has been any meaningful case yet,” Gold said.

Gold also commented on some of the data breach-related insurance cases he has handled in the past. In one case, there was an argument that the data stolen was confidential information and therefore was subject to a policy exclusion.

In another case, an insurer argued that the policyholder’s cyber losses did not directly result from a hacking incident. “So we had a whole fight over what the phrase ‘directly resulting from’ meant in the context of an insurance policy,” he said. “And we obviously didn’t agree with the insurance company’s position, nor did the court. But we still had to go through a very long legal battle over that.”

In yet another case, “a big fight” rose over whether forged wire transfer instructions were covered under a financial institution crime policy, Gold said. “We finally got the insurance company to pay the claim. But these exclusions can get so technical,” he said. “That’s why we always recommend that policyholders really try and understand the insurance policy language that they are going to buy.”

Gold advised, “If you see some fine print in your insurance policy that you can’t understand, it’s much better to try to deal with those issues when you are actually in the process of purchasing the policy, versus having to fight about them later when you have a claim.”

He also offered some general advice for companies that suffer a data security breach. First, companies should start the forensic accounting process right away to ensure the damage is not more widespread than was initially known and to fix whatever security holes that may exist or were exploited by hackers.

Second, companies should do everything they can to comply with state notification laws regarding data breaches, he said.

Third, companies should make sure to give notice to every potentially applicable insurance company. “One thing that can happen is that people understandably are very focused on dealing with the immediate underlying exposure and that is certainly something that is important,” Gold said. “But companies also have to remember they’ve got all kinds of insurance policies that they may need to put on notice.”

“So when in doubt, they should give notice under every potentially applicable policy,” Gold said.

He explained that there is usually very little problem in withdrawing a claim if it turns out the coverage belongs under one policy rather than another. But, on the other hand, if the policyholder gets it wrong and doesn’t give notice under a policy that later turns out to provide meaningful coverage, it could be costly for the policyholder. “Lots of insurance companies will argue that somehow the late notice prejudiced them and somehow void or reduce the insurance coverage that they would otherwise have,” he said.

And if there is an initial denial or some type of reservation from the carrier, the policyholder shouldn’t just accept it, attorney Um said. “Don’t accept the initial denial…[policyholders should] push back,” he said, “and on a going-forward basis, think about these risks as you get into negotiations about policy renewals and the type of policies you want to take a look at.”

Below is a copy of a complaint against Target, filed in the U.S. District Court, Northern District of California: Kirk et al. v. Target Corp., case no. cv 13 5885.