Surviving The 2nd Wave Of Cybersecurity Litigation

Law360, New York (July 23, 2015, 11:00 AM EDT) -- It's a familiar pattern. First, new risks inspire legislation and regulations that impose new penalties. Next, insurers and policyholders fight over whether the new liabilities are covered under traditional liability policies. Finally, insurers craft new coverages to define their obligations in the changed environment. See, e.g., DeMeo, Eldred, Utiger & Scruggs, "Insuring Against Environmental Unknowns," 23 J. Land Use & Envtl. L. 61, 62-65 (2007). In this respect (if not in any others), the unprecedented growth of both cybersecurity exposure and the demand for cybersecurity insurance have unfolded in a predictable way. In 2015, some of the most closely-watched suits over traditional commercial general liability policies wound down or settled, while litigation under early cyber endorsements has begun to spring up. Last fall, the Insurance Services Office (ISO) amended its standard CGL coverage form specifically to exclude data breach liability; then, in a March 2015 press release, it unveiled a standardized cyber liability coverage form....

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