Black Hats, Firewalls, and Data Loss: Insurers Confront Data Breach Litigation

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1 Thomas W. Curvin Phillip E. Stano Mark Thibodeaux Tracey K. Ledbetter December 9, 2014 Black Hats, Firewalls, and Data Loss: Insurers Confront Data Breach Litigation INSURANCE AND FINANCIAL SERVICES LITIGATION WEBINAR SERIES

2 Magnitude of the Problem From 2005 to the present, there have been approximately 590 known data breaches involving companies in the Financial and Insurance Services sector. Source: Privacy Rights Clearinghouse 2

3 Magnitude of the Problem: Industry Targets Health insurers Life insurers Disability insurers Workers compensation insurers Auto insurers Homeowners insurers Title insurers Municipal bond insurers 3

4 Magnitude of the Problem: Industry Affiliate Targets State health insurance exchange Wholesale brokers Independent agents Captive agents Independent adjusters FINRA SEC New York State Banking Department South Carolina Department of Revenue 4

5 Data Breach Scenarios Involving Insurers Hacking: true cyber-breach Phishing attacks Installation of malware Theft of laptops Password protected Encrypted Unencrypted Theft of servers Back-up tapes, other storage devices lost in transit Employee dishonesty 5

6 Insurance Companies are Targets Actual screen capture from underground website offering insurance records for sale. 6

7 Sources of Attacks Criminals Disgruntled former employees / teenagers on a dare Cyber-extortion gangs in Eastern Europe, etc. Hackivists Embarrass corporate leadership Espionage War Theft of intellectual property Homeland security and critical infrastructure Non-state actors Cyberterrorism 7

8 Root Causes of Data Breaches Root Causes of a Data Breach Per Capita Cost For Each Root Cause 8 Source: 2014 Cost of Data Breach Study: Global Analysis Sponsored by IBM, Conducted by Ponemon Institute LLC

9 Cases Against Insurers: Claims Asserted To Date Fair Credit Reporting Act Common law right to privacy Breach of contract (or implied contract) Unjust enrichment Breach of fiduciary duty Negligence, gross negligence, negligent misrepresentation State statutory violations, including consumer fraud / unfair trade practices statutes 9

10 Cases Against Insurers: Other Potential Claims Health Insurance Portability and Accountability Act (HIPAA) Gramm-Leach-Bliley Act Parens patriae claims by State Attorneys General State notification statutes As of 2012, 46 states and the District of Columbia have enacted laws requiring notice of security breaches of personal data. 10

11 Cases Against Insurers Where plaintiffs are not able to allege actual harm (such as identity theft)... Many courts have held that the mere increased risk of identity theft is too speculative to support standing. Galaria, 998 F. Supp. 2d 646 (S.D. Ohio 2014). Allison, 2010 WL (E.D. Pa. Mar. 9, 2010). Randolph I, 486 F. Supp. 2d 1 (D.D.C. 2007). The speculative nature of the harm may prevent plaintiffs from stating a claim. Randolph II, 973 A.2d 702 (D.C. 2009). 11

12 Cases Against Insurers However, some cases have survived motions to dismiss. Present emotional distress could give rise to actual injury and damages. Rowe, 2010 WL (N.D. Ill. Jan. 5, 2010). In some cases, plaintiffs are able to allege actual identity theft, as well as facts that satisfy a court that the identity theft was caused by the data breach. Resnick, 693 F.3d 1317 (11th Cir. 2012). These cases have both settled. 12

13 Cases Against Insurers Randolph I, 486 F. Supp. 2d 1 (D.D.C. 2007). A laptop with plaintiffs personal information was stolen during a burglary of an employee s home. Plaintiffs sued for invasion of privacy, gross negligence, and negligence. None of the plaintiffs alleged they had actually suffered identity theft. Plaintiffs did not have Article III standing because the increased risk of identity theft, and the inconvenience to them of having to monitor their credit, did not constitute injury in fact. 13

14 Cases Against Insurers Randolph II, 973 A.2d 702 (D.C. 2009). On remand to the District of Columbia court. Plaintiffs amended their complaint to include claims for negligence, gross negligence, breach of fiduciary duty, willful violation of appellants' right of privacy, and violations of the D.C. Code. The D.C. Court of Appeals found that plaintiffs had not stated a claim, as there was no allegation of actual harm to the plaintiffs or that anyone had actually accessed the personal information on the laptop. 14

15 Cases Against Insurers Allison, 2010 WL (E.D. Pa. Mar. 9, 2010). Company s job application website was hacked, which caused some people but not plaintiff to receive phishing s, apparently as a result of the data breach. Plaintiff brought claims for negligence, breach of implied contract, breach of express contract, negligent misrepresentation, and invasion of privacy. The court dismissed plaintiff s claims for lack of standing because the alleged increased risk of identity theft was too speculative to constitute injury in fact. The court noted that it was only conjecture whether plaintiff s information had been accessed, and it appeared the only information that had been accessed was addresses. 15

16 Cases Against Insurers Galaria, 998 F. Supp. 2d 646 (S.D. Ohio 2014). Hackers accessed insurer s computer network. The plaintiffs asserted they had been harmed due to the increased risk of harm and the cost to mitigate that risk; their loss of privacy; and the deprivation of the value of their PII. They had not actually had their identities stolen. The court dismissed all of the claims based on lack of standing and failure to state a claim. 16

17 Cases Against Insurers Galaria, 998 F. Supp. 2d 646 (S.D. Ohio 2014). As to most of the claims, plaintiffs were unable to show injury in fact because the harms alleged were not imminent or certainly impending harms, and plaintiffs did not show how their PII became less valuable as a result of the breach. As to the invasion of privacy claim, the court found that plaintiffs had failed to allege the defendant, as opposed to the hackers, had disseminated their information to the general public. 17

18 Cases Against Insurers Rowe, 2010 WL (N.D. Ill. Jan. 5, 2010). The insurance company accidentally posted certain personal information of its members online. Plaintiff sued for violations of the Fair Credit Reporting Act, the state privacy statute, invasion of privacy, negligence, and breach of implied contract. He did not allege that his information was stolen or that any unauthorized person accessed his personal information. 18

19 Cases Against Insurers Rowe, 2010 WL (N.D. Ill. Jan. 5, 2010). The court inferred for the purposes of this motion [to dismiss] only that plaintiff s information had been accessed, and therefore plaintiff had stated a claim under the Fair Credit Reporting Act. The court also ruled that the plaintiff might be entitled to emotional distress damages, damages for the increased risk of future harm (but only if the plaintiff had suffered a present injury, such as emotional distress), costs of credit monitoring, damages for the loss of value to his PII (if he proved he had some possessory interest in it), and damages for invasion of privacy. After the motion to dismiss was denied, the case settled. 19

20 Cases Against Insurers Resnick, 693 F.3d 1317 (11th Cir. 2012). Laptops containing customer information were stolen from the company s corporate office. Plaintiffs alleged negligence, negligence per se, breach of contract, breach of implied contract, unjust enrichment, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. Plaintiffs alleged they had actually suffered identity theft. The court found (over dissent) that plaintiffs pleaded sufficient facts to allege a causal nexus between the data theft and the identity theft, so they were able to state a claim as to most of their causes of action. After denial of the motion to dismiss, this case settled. 20

21 Edwards: Alleged Data Breach by a Third-Party Vendor Computer hardware containing Plaintiff s / class members confidential information was burglarized from office of vendor that analyzed workers compensation claims. Claims: Defendants unlawfully and negligently disclosed Plaintiff s and other class members confidential medical information. Violations of California Civil Code 56.10, , and ; Unfair Business Practices violation; negligent hiring and retention; and intentional tort. 21

22 Edwards: Exposure Under CA Law Nominal damages Up to $1,000 per violation (Cal. Civ (b)(1)). No requirement that Plaintiff demonstrate actual damages suffered. Administrative fines / civil penalties Up to $2,500 per violation (Cal. Civ (c)(2)). Relevant circumstances affecting amount of penalties assessed include: nature and seriousness of the misconduct ; number of violations; defendant s assets, liabilities, and net worth ; etc. 22

23 Edwards: Defenses 23 Lack of causation Intervening criminal conduct, not negligence, led to alleged breach. Lack of standing Could Plaintiff show that his personal data had been accessed or could be accessed from the stolen hardware? Could Plaintiff show he suffered from identify theft, harm to his credit profile, or monetary loss as a result of the theft? Only an individual whose medical information has been used or disclosed and who has sustained economic loss or personal injury may recover under Cal. Civ A hypothetical increased risk of developing injuries in the future is insufficient to confer standing. See, e.g., Toxic Injuries Corp. v. Safety-Kleen Corp., 57 F.Supp.2d 947 (C.D. Cal. 1999)

24 Coverage for Cyber-Breach: What Is at Stake? Forensic investigation of the breach Notification costs Providing credit monitoring Regulatory fines and penalties Civil litigation damages 24

25 Coverage Issues: Which Policies Might Apply? Business property (first-party) coverages Covers direct physical loss Commercial General Liability (CGL) policies Personal and Advertising Injury coverages Employee Dishonesty / Fidelity policies 25

26 Coverage Issues: CGL Policies Typical Insuring Agreement: The company will pay sums that the insured becomes legally obligated to pay as damages because of bodily injury, property damage, personal injury or advertising injury to which this insurance applies. 26

27 Coverage Issues: What Is Property Damage? Common definition is that Property Damage means: Physical injury to tangible property; or Loss of use of tangible property that is not physically injured. 27

28 Coverage Issues: Case Law Property damage: Is it tangible property? Computer software or data isn t Am. Online, Inc. v. St. Paul Mercury Ins. Co., 347 F.3d 89 (4th Cir. 2003). Ward Gen. Ins. Servs., Inc. v. Employers Fire Ins. Co., 7 Ca. Rptr. 3d 844 (Cal. Ct. App. 2003). State Auto Prop. & Cas. Ins. Co. v. Midwest Computers & More, 147 F. Supp. 2d 1113 (W.D. Okla. 2001). 28

29 Coverage Issues: Case Law Property damage: Is it tangible property? The computer itself or its servers are Eyeblaster, Inc. v. Fed. Ins. Co., 613 F.3d 797 (8th Cir. 2010). Vonage Holdings Corp. v. Hartford Fire Ins. Co., 2012 WL (D.N.J. Mar. 29, 2012). Lambrecht & Assocs., Inc. v. State Farm Lloyds, 119 S.W.3d 16 (Tex. App. 2003). State Auto Prop. & Cas. Ins. Co. v. Midwest Computers & More, 147 F. Supp. 2d 1113 (W.D. Okla. 2001). 29

30 Coverage Issues: What Is Personal Injury? Injury caused by an electronic, oral, written or other publication of material that violates a person s right to privacy. 30

31 Coverage Issues: Case Law Personal or advertising injury: Is access required for publication? Some cases indicate plaintiffs must allege that someone accessed the data. OneBeacon Am. Ins. Co. v. Urban Outfitters, Inc., 2014 WL (E.D. Pa. May 15, 2014). Recall Total Information Mgmt., Inc. v. Fed. Ins. Co., 83 A.3d 664 (Conn. App. Ct. 2014). Others suggest access will be inferred. Travelers Indem. Co. of Am. v. Portal Healthcare Solutions, LLC, 2014 WL (E.D. Va. Aug. 7, 2014). Zurich Am. Ins. Co. v. Sony Corp. of Am., No /2011 (N.Y. Super. Ct. Feb. 21, 2014) (bench ruling). 31

32 Coverage for Cyber-Breach: Who Needs It? Cyber insurance cannot protect your institutions from a cyber incident any more than flood insurance can save your house from a storm surge or D&O insurance can prevent a lawsuit. But what cyber risk insurance can do is provide some measure of financial support in case of a data breach or cyber incident. And, significantly, cyber risk insurance and the associated underwriting processes can also help bolster your other cybersecurity controls. Qualifying for cyber risk insurance can provide useful information for assessing your bank s risk level and identifying cybersecurity tools and best practices that you may be lacking. Remarks of Deputy Treasury Secretary Sarah Raskin, 12/3/

33 Purchasing Cyber Risk Coverage Defending claims resulting from: Network and data security breaches Regulatory investigations Judgments and settlements Limits of Liability / Policy Period 2011 data breach $194 per electronic record $10 million 50,000 records Retroactive coverage date 33

34 Purchasing Cyber Risk Coverage Consider covering costs of: Notifying individuals whose data has been breached Providing credit monitoring Retaining public relations and forensic investigation consultants Restoring lost or stolen data Pursuing indemnity rights when someone else has caused the breach Lost revenue due to interruption of business operations E-ransom demands 34

35 Purchasing Cyber Risk Coverage Use broker with cyber insurance expertise Retain counsel with cyber risk experience Focus on policy exclusions 35

36 Questions? Thomas W. Curvin Phillip E. Stano Mark Thibodeaux Tracey K. Ledbetter

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