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). The U.S. District Court for the Northern District of Illinois found that a general liability (GL) insurer had to defend its policyholders against two class action lawsuits alleging that the policyholders were selling biometric data in violation of BIPA and common law rights.
Continue Reading Illinois Court Builds on 2021 State Supreme Court Ruling to Find Further General Liability Insurance Coverage for Biometric Information Privacy Act (BIPA) Class Actions

Businesses operating in Illinois have faced thousands of lawsuits arising under the Illinois Biometric Information Privacy Act (BIPA), leading to hundreds of cases and related insurance claims. Insurance companies have aggressively denied coverage for these claims and filed litigation seeking court approval of their denials, forcing policyholders into a two-front legal war. Recently, the Illinois Supreme Court granted a major victory for businesses facing BIPA lawsuits, holding that a BIPA lawsuit alleging a wrongful sharing of biometric information fell within standard “personal or advertising injury” coverage in a commercial general liability policy and was not excluded.
Continue Reading Illinois Supreme Court Affirms BIPA Lawsuits Are Covered by GL Policies

Since the beginning of the COVID-19 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. Unfortunately, this onslaught of litigation

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. Potentially covered sources of loss and damage include (1) efforts to make buildings safe for students, faculty, staff, and administrators, (2) tuition adjustments, loss of athletic and extra-curricular events revenue and related sponsorships, and (3) extra expenses and/or lost revenue related to student housing issues.

Continue Reading Higher Education COVID-19 Losses: Property and Business Interruption Insurance Policies Should Provide Relief

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. Meanwhile, the independent regulator of insurers in the United Kingdom, the Financial Conduct Authority (FCA), is trying to take a more

The general intent of business interruption (BI) insurance is to cover unexpected losses to the business from the inability to use property necessary to run the business. The current form BI policies have a mechanism for making a claim for loss of revenue and/or increased costs to the business. They typically also have Civil Authority coverage to replace lost revenue when the government closes a business’s property, but carriers generally consider this a limited remedy for a short time period (such as a month). The real disagreement from carriers regarding coronavirus (COVID-19) claims is that there must be physical property damage, and even if there is property damage, the virus exclusion prevents claims for losses from COVID-19. Moreover, carriers argue that if these coverage issues are defeated in court or removed by legislation, the carriers do not have sufficient reserves to cover the anticipated BI-related claims caused by COVID-19. For example, the American Property Casualty Insurance Association has recently claimed that being forced by legislative intervention to cover small business BI losses related to COVID-19 would cost insurers $383 billion a month.

Continue Reading Congress or the States Could Use the Existing Mechanism of BI Claims to Provide a Further Bailout to Businesses That Are Hurt by COVID-19

Numerous businesses facing class action lawsuits brought under the Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14 et seq., have sought insurance coverage under general liability policies only to receive blanket denials. It appears some relief may be on the way as the first Illinois Appellate Court to consider the issue affirmed the decision of the trial court and found in favor of coverage. West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2020 IL App (1st) 191834 (March 20, 2020).
Continue Reading First Illinois Appellate Decision Finds Coverage for BIPA Class Action Under General Liability Policy

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. Originating in Wuhan City, Hubei Province, China, the coronavirus has infected more than 28,000 people, killing at least 560. On January 31, 2020, the World Health Organization declared the 2019-nCoV virus (the formal medical designation of this new strand of coronavirus) a public health emergency. The Centers for Disease Control and Prevention, which is also closely monitoring the outbreak, reports that “[t]he potential public health threat posed by 2019-nCoV virus is high, both globally and to the United States.”
Continue Reading Coronavirus Coverage: How to Offset Your Business Losses in a Global Health Emergency

The ability to build and maintain strong relationships with business partners and vendors is an essential requirement for any business seeking long-term success. This is especially true in the fast-paced technology sector, where a company’s ability to put its innovative ideas to work often depends on its access to outside capital and its skill in turning connections into contractually-bound partners, vendors, clients, and customers. The unfortunate corollary to the need for technology firms to build and maintain relationships with outside partners is, of course, that no relationship is perfect. Not all partnerships are built to last. That reality raises an all-important question: how do you prepare your firm for the inevitable day when one of its business relationships sours?

As my colleague Linda Powell discussed recently, firms that provide technology services and products can manage their relationship-based risk by purchasing Technology Errors and Omissions (Tech E&O) insurance. Alternately known as Technology Professional Liability Insurance, Tech E&O insurance is likely to respond to demand letters, claims, or lawsuits brought against your firm by dissatisfied business partners, vendors, or customers who believe that your firm has committed an error or made an omission that caused financial harm.
Continue Reading When Business Relationships Go Bad: Maximizing Your Technology Professional Liability Coverage for Breach of Contract Claims

Data breaches are up significantly in 2019, exposing billions of confidential records and costing companies millions of dollars on average per breach. Security experts counsel their clients that data breaches are inevitable as even the largest, most secure systems may be breached. In spite of this environment, many tech companies are woefully unprepared to respond to a cyber intrusion, data breach, or other cyber-related event. Are you ready?

As insurance coverage lawyers, we often work with clients to confront this organization-wide challenge after a breach has occurred. The better approach, however, is to prepare in advance by understanding your risks, building a team, securing and monitoring your data, having a well developed and rehearsed response plan, and tailoring your insurance program to a possible breach. Additionally, having counsel involved throughout the preparation and response process is critical to protect privilege, minimize legal liability, and maximize insurance coverage. 
Continue Reading Preparing for Data Breaches: Data Mapping, Response Team and Insurance