Jonathan E. Meer Partner

An August 2022 Illinois District Court cyber insurance case emphasizes the need for insurers to be robust in their underwriting of potential insureds before taking on risk, while underscoring the critical requirement that potential insureds should answer questions thoroughly and truthfully and not omit any vital information that could later be construed as misrepresentations and void the policy.

Cannabis companies have been trailblazers on social equity, inclusion and environmental issues, highlighting their importance long before environmental, social and corporate governance (ESG) gained traction in the wider corporate world. Despite well-intentioned words and actions, however, the cannabis industry is not free from potential ESG-related exposures that may lead to additional risks for cannabis executives in the years to come.

As the legalization of cannabis expands, regulatory and litigation risks also will evolve. Proposed legislation, such as the SAFE Banking Act, will likely lead to greater insurance capacity in the cannabis market, and removal of marijuana from the Controlled Substances Act will have a significantly positive impact on cannabis D&O exposures after a likely tumultuous transition period following legalization.

The rise in “event-driven” litigation when securities suits are filed after an event, such as the COVID-19 pandemic, causes an unreasonable dip in a company’s stock prices and increased shareholder derivative litigation. Ultimately, how a company responds may subject its directors and officers to the scrutiny of a wide range of claimants, including shareholders, competitors, customers, vendors, suppliers, employees and regulatory entities.

Wilson Elser is pleased to provide the 2018 ESI Case Law Update, our annual compendium of cases dealing with issues and developments surrounding electronically stored information (ESI). It is a rare case that does not involve the preservation, review and production of ESI.  Your knowledge of the tools and regulations could mean the difference between sanctions and compliance.

Under 23 NYCRR Part 500, effective in March 2017, New York provided clear notice that it intends to hold directors and officers more responsible for ensuring that their companies are undertaking more active assessment of their own security policies and procedures. Even for those directors and officers whose companies are not subject to this Regulation, the responsibilities outlined in the enacted rules set forth a general standard of care that they, too, would be well advised to consider and follow. 

Effective October 31, 2017, employers in New York City are prohibited from asking about a job applicant’s salary history during all stages of the employment hiring process. The new law also prohibits an employer who knows of a job applicant’s salary history from relying on that information in the determination of future salary.

Based on a recent U.S. Supreme Court decision, employers who have challenged the enforceability of an EEOC subpoena at the district court no longer have to be concerned about the Ninth Circuit “second guessing” the lower court’s decision de novo. That said, lower court decisions will be harder to overturn on appeal based on the abuse of discretion standard.

New York’s Appellate Division, Second Department recently reaffirmed that under the common law principle of waiver, an insurer cannot create coverage in third-party liability cases involving property damage where none exists under the policy simply by having failed to initially raise a coverage exclusion and, absent a showing of prejudice by the insured, the insurer will not be estopped from asserting the exclusion. 

School officials are custodians of students, and states have adopted rules and regulations that give school officials even more power to protect students from bullying. States have added specific cyber-bullying language to their anti-bullying laws, codifying the notion that school officials have the discretion to act to protect students from bullying based on incidents outside of school. But are students’ passwords on social media websites fair game?

In a case of first impression in New York, a state trial court has ruled that a school district defending a bullying case under New York’s Dignity for All Students Act can face potential liability even if the bullying victim is not one its own students.

In a case of first impression in New Jersey, a trial court has ruled that school districts defending bullying cases under New Jersey’s Anti-Bullying Bill of Rights Act and the New Jersey Law Against Discrimination can seek contribution from students accused of bullying and their parents.

In one of the first cases in which a New Jersey school district has been held liable for failure to adequately respond to school bullying, the decision from the NJ Division of Civil Rights outlines the factors that a trier of fact will consider when scrutinizing a school district’s response to bullying and serves as an example of the potential consequences for failing to remedy the problem.