Pillsbury advised LifeSpeak Inc., the leading mental health and total wellbeing platform for employers, health plans, and insurance companies, in reaching a definitive agreement in which LifeSpeak has agreed to acquire Wellbeats, Inc., a market-leading provider of an on-demand, software-as-a-service (“SaaS”) physical wellbeing platform, for up to US$92.5 million in cash. With a combined 30 years of experience as respective leaders in digital health education and physical wellbeing, the acquisition supercharges LifeSpeak’s ability to meet rapidly growing demand from organizations for a comprehensive, single-vendor solution to meet mental and physical health support needs. Upon the completion of the transaction, Jason Von Bank, President & CEO of Wellbeats, will assume the role of Chief Operating Officer of LifeSpeak.

An exploration of the most significant decisions handed down by the courts in 2021 concerning COVID-19 business interruption insurance coverage litigation.

Early in 2021, we wrote about potential insurance implications that could arise from the then-new Biden Administration’s expected regulatory priorities. Among other things, we noted that heightened scrutiny on coal ash was expected. On January 11, 2022, the U.S. Environmental Protection Agency (EPA) confirmed that prediction, issuing a press release announcing “key steps” it is taking to “protect groundwater from coal ash contamination.” As companies with coal ash liabilities consider EPA’s new guidance and next steps, they should be aware that they may have insurance that could cover some of their coal ash cleanup costs.

Defendants in New York state court are now subject to some of the most extensive liability insurance disclosure requirements in the nation. On December 31, 2021, Governor Hochul signed into law, effective immediately, the Comprehensive Insurance Disclosure Act, amending New York Civil Practice Law & Rules (CPLR) § 3101(f) to require defendants in civil cases to disclose voluminous and potentially sensitive insurance materials, including applications for insurance policies and information concerning other claims.

Defendants in New York state court are now subject to some of the most extensive liability insurance disclosure requirements in the nation. On December 31, 2021, Governor Hochul signed into law, effective immediately, the Comprehensive Insurance Disclosure Act, amending New York Civil Practice Law & Rules (CPLR) § 3101(f) to require defendants in civil cases to disclose voluminous and potentially sensitive insurance materials, including applications for insurance policies and information concerning other claims. These new requirements create numerous pitfalls that could lead to the inadvertent disclosure of privileged claim-related information and confidential business information. They may also give rise to new tensions between insureds and their insurers and/or brokers. Defendants, and potential defendants, should scrutinize these changes with counsel and ensure that compliance with the new § 3101(f) does not unwittingly open the door to new insurance-related challenges.

The widespread denial of coverage under first-party property insurance policies for business interruption losses resulting from the COVID-19 pandemic has been extensively reported, but so far less attention has been paid to related third-party claims and attendant coverage issues arising under liability insurance policies. When ticketed attendees sued the organizer of the South by Southwest (SXSW) music and film festival, SXSW LLC, for refunds after the 2020 annual event was cancelled because of the COVID-19 pandemic, the company’s liability insurer, Federal Insurance Company, refused to make good its duty to defend. SXSW has now sued Federal in the U.S. District Court for the Western District of Texas seeking a declaration that Federal owes a duty to defend SXSW against the underlying putative class action, providing insight on COVID-19-related liability coverage issues.

Insurance Recovery & Advisory counsel Benjamin Tievsky recently spoke with Law360 about two of the biggest general liability rulings of 2021.

Last month, we discussed a decision by the Northern District of Illinois finding an amount labeled “restitution” in a settlement between a pharmaceutical company and the DOJ was insurable loss under a D&O policy. Shortly after that post, the New York Court of Appeals reached a similar conclusion, continuing the trend of looking beyond the labels used for the payments in the underlying settlement agreement. In rejecting the insurers’ argument, the court evaluated the purpose of the payments and the nature of how they were derived to find the payments at issue were insurable under a Professional Liability policy, despite being called “disgorgement.”

In August, we provided an overview of the recent increase in regulatory and private litigation activity around per- and polyfluoroalkyl substances (PFAS), colloquially known as “forever chemicals,” and potential insurance coverage for PFAS liability. There have been important developments on the PFAS front in the past few months. Companies with any connection to PFAS need to be cognizant of the evolving regulatory landscape and be prepared to defend against potential PFAS liability. Fortunately, insurance coverage may be available to help mitigate these fast-growing claims—including coverage under historic general liability policies.

Pillsbury announced today that 13 attorneys will join its partnership in January 2022. The new partners work across Pillsbury’s primary client industries—technology, life sciences, energy, financial, real estate and construction—and their skills range from handling business-critical transactions and financings to complex regulatory issues and high-stakes litigation.

Pillsbury client Nasdaq Will Begin Migrating Markets to AWS Starting in 2022
Nasdaq and Amazon Web Services, Inc., an Amazon.com Inc. company, have announced a multi-year partnership to build the next generation of cloud-enabled infrastructure for the world’s capital markets.

In my December 18, 2017, blog post, I wrote about “choosing the right path” to settle complex insurance claims and emphasized the benefits of private structured negotiation, a type of negotiation undertaken without the assistance of mediators. At that time, I identified mediation as “a good potential next step.” Since 2017, the world has suffered through a pandemic, and it has become apparent to me that private settlement discussions can sometimes become discoverable in litigation, even if compromise communications are not permitted in evidence. In the wake of these developments, what I previously counseled as a good potential second step is now in my view the proper first step in most cases. Notwithstanding, while mediation has many benefits, its efficacy depends on identifying the right mediator, selecting the right timing and format (now, likely virtual), and making sure that any settlement reached in mediation does not later unravel.

Pillsbury is advising special purpose acquisition company Atlantic Coastal Acquisition Corporation on its combination with industrial 3D printing solutions provider Essentium Inc. The deal reflects an enterprise value of $974 million for Essentium.

Join Pillsbury lawyers for a webinar that will arm government contractors with practical guidance to navigate this series of new cybersecurity measures.

Businesses suing insurers for billions in losses from COVID-19 shutdowns are entering a new phase: jury trials. Over the past year, judges have ruled in favor of insurers in hundreds of cases, backing up the carriers’ rejections of “business interruption” insurance claims. Many of those rulings have involved policies with virus-specific exclusions, which can make the cases more open-and-shut for judges.

Increased litigation over the growing wave of transactions involving special-purpose acquisition companies will likely lead to heated fights over the potential application of the so-called bump-up exclusion found in directors and officers insurance policies, policyholder attorneys say.

Core BTS, a technology consulting and managed services provider, today entered into a definitive agreement to be acquired by Pillsbury client Nomura Research Institute (NRI), one of Japan’s leading research and consulting firms. This transaction firmly establishes NRI with a platform to capitalize on the growing demand for digital transformation in the U.S.

Pillsbury has earned a total of 167 national and regional practice rankings in the latest U.S. News – Best Lawyers 2022 “Best Law Firms” survey. Of those rankings, 27 were listed as national Tier 1 and 69 were listed as Tier 1 within their respective metropolitan markets.

Do employees have a privacy right in the shape of their faces, the color of their eyes, or the texture of their fingertips? In many states, the law now says yes—leading employers to ask: Are resulting biometric privacy claims covered under their existing policies, or is insurance otherwise available?

Businesses increasingly collaborate with social media influencers to promote their brand and connect with their online audience, but such relationships can put a company’s reputation on the line and create liability risks. Liabilities can arise in areas such as defamation and libel, securities laws violations, copyright and trademark infringement, and around information protection and disclosure rules, experts say.

Until an Oct. 28 verdict by a Missouri federal jury, an overwhelming majority of state and federal court judges have disposed of cases brought by policyholders contending the presence of the coronavirus caused covered physical loss or damages to their properties.

Look at virtually any Covid-19 case favoring an insurer, and you will find a citation to Section 148:46 of Couch on Insurance. It is virtually ubiquitous: courts siding with insurers cite Couch as restating a “widely held rule” on the meaning of “physical loss or damage”—words typically in the trigger for property-insurance coverage, including business-income coverage. It has been cited, ad nauseam, as evidence of a general consensus that all property-insurance claims require some “distinct, demonstrable, physical alteration of the property.” Indeed, some pro-insurer decisions substitute a citation to this section for an actual analysis of the specific language before the court.

Judge Catherine C. Eagles of the U.S. District Court for the Middle District of North Carolina made the right call by allowing a large hospital system policyholder to litigate the merits of its COVID-19 business interruption claim to recovery where so many others have had that door improperly and prematurely shut by other federal courts recently.

After hitting the shores of Louisiana with winds of up to 172mph in late August, Hurricane Ida’s remnants barreled up to the northeastern United States, leaving waves of destruction in its wake. The deluge of rain—more than half-a-foot fell in just a few hours—turned streets and subway platforms into rivers. The catastrophic flooding caused by the record-breaking rainfall killed several dozen people, left thousands without power, and damaged countless homes and businesses. All told, Ida is said to have caused more than $50 billion in damage. And scientists predict that, because of climate change, heavy rainfall-producing storms like Ida will only become more and more frequent.

Law360 has selected Tamara Bruno, leader of the Texas section of Pillsbury’s Insurance Recovery & Advisory practice, to the elite slate of attorneys chosen as 2021 practice MVPs. Bruno was one of just six lawyers recognized nationwide in the Insurance category.

In a landmark victory for policyholders seeking business interruption coverage for COVID-19-related losses under their all risk property policies, a Kansas City federal judge has denied the bulk of the insurance carrier’s motion for summary judgment and sent a case brought by an owner of Kansas City bars and restaurants to trial. See K.C. Hopps Ltd. v. The Cincinnati Ins. Co. Inc., No. 20-cv-00437-SRB (W.D. Mo. Sept. 21, 2021). The trial will now begin on October 25, 2021.

On August 29, Hurricane Ida struck Louisiana as one of the most powerful storms in U.S. history, making landfall in the key petroleum production area of Lafourche Parish with top sustained wind speeds of 150 miles an hour. A nearly $15 billion complex of enhanced levees and floodwalls constructed after Hurricane Katrina ravaged New Orleans in 2005 prevented widespread loss of life, but major power outages contributed to a death toll of 26 in Louisiana as of September 8. Entergy, the state’s main utility, reported damage and outages far exceeding those caused by any prior hurricane. As the storm moved through the Northeastern United States on September 1–2, it generated unprecedented rainfall in New York, New Jersey and elsewhere across the region, leading to at least 50 deaths. AccuWeather has estimated the storm’s nationwide damage to reach $95 billion. Now, only two weeks later, Tropical Storm Nicholas is approaching the Gulf Coast and is expected to bring significant flooding and storm surge to the area.

Look at virtually any COVID-19 case favoring an insurer, and you will find a citation to Section 148:46 of Couch on Insurance. It is virtually ubiquitous: courts siding with insurers cite Couch as restating a “widely held rule” on the meaning of “physical loss or damage”—words typically in the trigger for property-insurance coverage, including business interruption coverage. It has been cited, ad nauseam, as evidence of a general consensus that all property-insurance claims require some “distinct, demonstrable, physical alteration of the property.” Indeed, some pro-insurer decisions substitute a citation to this section for an actual analysis of the specific language before the court.

Increased ransomware attacks have led to dramatic hikes in the cost of cyber insurance. As prices rise, insurers are imposing tougher conditions and companies that haven’t been carrying cyber insurance may find the cost to be a barrier to entry.

Three Pillsbury lawyers— Tamara Bruno, Mona Dajani and Matthew Morrison—have been recognized by Law360 as 2021 MVPs. This is the second consecutive selection as a Project Finance MVP for Dajani. She is joined this year by Pillsbury partners Bruno and Morrison, who were named to the Insurance and Environmental categories, respectively.

Native American tribes and nations have seen mixed results in federal and state suits against insurance companies as they continue to bring litigation aiming to tap into billions of dollars of coverage for losses to casinos and resorts during the COVID-19 pandemic.

Pillsbury received 203 individual lawyer rankings in the 2022 edition of Best Lawyers in America. The results acknowledge 136 Pillsbury lawyers with 69 individuals ranking in two or more practice areas.

As cybercrimes and data breaches continue to cause significant damage to companies of all types, policyholders are looking to their various insurance policies for coverage to help weather the storm and recoup losses. A recent decision by the U.S. Court of Appeals for the Fifth Circuit highlights the need for companies to review all of their policies for potential cyber-related coverage, including their CGL policies.

A key component of a company’s risk management function is to keep a close eye on new and developing sources of liability and to put in place appropriate insurance to respond in the event those liabilities ripen. In recent years, there has been a significant increase in legal and regulatory attention on per- and polyfluoroalkyl substances, more commonly known as “PFAS” or “forever chemicals.” PFAS are used in countless applications, and many companies across the country bear potential liability, from chemical companies to manufacturers to retailers to corporate end users. PFAS-related enforcement is focused on remedying impacts to both the environment and human health. Importantly, a company’s liability for PFAS-related contamination or bodily injury may be covered under historic general liability policies and/or modern-day pollution liability policies. As regulation and litigation relating to these ubiquitous substances continues to surge, corporate policyholders with potential exposure should be proactive to examine their insurance portfolios and position themselves for potential insurance coverage in the event they become a PFAS liability target.

A feature of most corporate liability insurance programs is the tower system of coverage: a primary policy with several overlying excess policies stacked atop one another collectively providing coverage up to a desired (or available) limit of liability. Depending on the size and liability exposures of a policyholder, a tower can consist of dozens of policies providing limits totaling hundreds of millions of dollars. Adding to this complexity, excess policies often share layers of coverage in quota share arrangements, sometimes subscribing to the same policy but more often issuing separate policies for a stated percentage of the quota share whole. To avoid as much as possible an impenetrable web of conflicting coverage terms, excess policies often “follow form” to the underlying coverage (usually to the primary policy) providing the insurer certainty and providing the policyholder a consistent tower of coverage. It is not always possible, though, to obtain clarity and certainty in tower placements. Insurance companies issuing excess coverage may not wish to agree to all the terms included in the underlying policies, and so may offer additional or differing terms, creating inconsistencies in an otherwise monolithic tower. For example, a primary insurer may refuse to cover punitive damages whereas an excess insurer may agree to do so, or vice versa.

Since July 9, 2021, New York City’s businesses have been subject to the requirements of a new biometrics law. Businesses operating in New York City should consider both their potential liability under these new requirements and whether their current insurance program protects them against associated risks.

Pillsbury Insurance Recovery & Advisory partner Richard Giller, Litigation associate Kirk Gandy and Intellectual Property associate Chaz Hales discuss the need for insurance options to protect nonfungible token (NFT) owners.

The legal cannabis industry in the U.S. is growing at an unprecedented rate and is projected to reach $73.6 billion by 2027. While federal law still classifies marijuana as a Schedule I drug, many states have legalized both medical and recreational marijuana. As state restrictions ease, new business opportunities continue to emerge.

Richard Giller, an Insurance Recovery & Advisory partner at Pillsbury who represents athletes in injury insurance-related matters, weighs in on NCAA v. Alston as the consequences of the Supreme Court’s decision remain unsettled.

Winning a championship ring is everything. Just ask the Los Angeles Dodgers, who won 11 National League West titles between their 1988 and 2020 World Series Championships and would likely have traded several of those division titles for more World Series championships. But, of course, not all rings are equal. Neither are sports collectibles.

Janine Stanisz, an Insurance Recovery & Advisory counsel in Pillsbury’s New York office, has been identified as one of just six attorneys throughout the U.S. as a Law360 Rising Star for 2021 in the insurance category.

In its 2021 guide, The Legal 500 United States ranked Pillsbury as a leader in 28 practices areas nationwide, spanning the firm’s litigation, regulatory and transactional practices and industries.

In a recent federal court filing, Zurich American Insurance Company asked the district court to ignore the entirety of science regarding COVID-19 in order to support Zurich’s denial of all coverage for COVID-19 business interruption losses.

Nearly 700 years ago, England captured King John II of France and held him for ransom for four million écus. But France could not afford to pay, and King John II ultimately traded his two sons as substitute hostages to try and secure his own release.
Today, it is not monarchs and their territorial kingdoms but computer systems and electronic kingdoms of data that are at risk. They are held hostage by foreign hackers who promise a key to unlock them in exchange for a king’s ransom in bitcoin. But unlike France in the 1300s, many companies today can and do pay.

Do general liability policies provide coverage for limited disclosures of biometric data, such as fingerprints? The Illinois Supreme Court has concluded that they do.

When Frank Sinatra famously sang “if I can make it there, I’ll make it anywhere,” he was probably not crooning about making a claim for insurer bad faith. New York has indeed acquired a reputation as a difficult place to obtain an award of extra-contractual damages for an insurer’s unreasonable denial of coverage—one reason that insurance companies perceive New York to be a relatively favorable venue for coverage litigation. While New York law does in fact provide remedies for insurer misconduct, a bill recently introduced in the New York State Assembly could further expand policyholder protections. The legislation would create a private right of action for policyholders to sue their insurers (and for injured parties to sue tortfeasors’ insurers directly) for unreasonable refusal or delay of coverage and for categories of damages that include attorneys’ fees, consequential damages, and punitive damages. This sweeping legislation would allow New York to “be a part of it” along with many other states, like California and Washington, that have robust statutory protections against unfair claims practices.

In its 2021 guide to the top lawyers and law firms in the United States, Chambers USA ranked Pillsbury as a leader in 43 practice areas across the country, with 92 Pillsbury lawyers earning 107 individual recognitions.

For both good and ill, the COVID-19 pandemic has altered every facet of personal and professional life. For example, many employees have enjoyed unprecedented freedom to work remotely. However, with vaccines becoming more readily available, the time is soon approaching when people will return to their offices and places of work. With this return comes the potential for workplace-related disputes and, in their aftermath, claims for insurance coverage for the actions of employees, such as sexual harassment.

Location matters. Some states are more protective of policyholder or consumer interests than others. And so, where the case is ultimately litigated, and what law applies, can have profound implications for a policyholder’s recovery.

You’re invited to join our panelists as they discuss the latest updates on cybersecurity enforcement, compliance best practices and insurance issues.