WCM Shares the Holiday Spirit

On November 30, 2017, WCM Counsel Colleen Hayes and Associate Hillary Ladov, both of the Philadelphia office, helped make the holidays a little brighter for the children supported by Turning Points for Children with a donation at the annual Philadelphia Bar Association Young Lawyers Division Holiday Party. Colleen serves as the liaison for the Philadelphia Association of Defense Counsel and Hillary was recently elected Financial Secretary for the Young Lawyers Division Executive Committee. Turning Points for Children is the leading social service agency in Philadelphia, offering programs that help families in raising safe, healthy, educated, and strong children by partnering with caregivers to develop and strengthen protective qualities and by offering them the tools, skills, and resources needed to ensure their children’s optimal development.

For more information about this post please e-mail Bob Cosgrove.

This and That by Dennis Wade

Of late, insurers who write crime and fidelity coverage have been “spooked” by “spoofing” scams in which bad guys use spoofed emails to trick company executives to wire transfer funds to phony accounts.

Curious about this phenomenon, I Googled “How do you spoof an email?”  It’s shockingly easy as I learned from watching You Tube how-to videos and reading scores of articles that popped from my simple query.  And the very ease of spoofing is at issue in Medidata Solutions, Inc. v. Federal Insurance Company, a matter about to be heard in the Second Circuit.

In that case, Federal wrote “Funds Transfer Fraud” and “Computer Fraud” coverage.  In 2014, Medidata sustained a loss when it wire transferred close to $5 million dollars from its account at Chase Bank to an account in a Bank in China that proved to be the account of a fraudster and not the party that Medidata thought it was paying.

In the coverage contest in the District Court, both sides agreed that spoofed emails, seemingly coming from the plaintiff’s CEO, tricked authorized employees to trigger the wire transfers. Federal argued its coverage was limited to third party hacking or otherwise a physical intrusion into the company’s computer system or bank account. But Federal contended that simple spoofing scams – – resulting in authorized transfers by the insured itself – – did not fit within the embrace of its coverage.  The District Court disagreed with Federal’s reading of the coverage grant, finding the wording wide enough to embrace a scheme in which a spoofed email prompted an employer to trigger a wire transfer.

That this issue is central to Crime and Fidelity insurers is made plain by the amicus brief submitted by The Surety & Fidelity Association of America (SFAA), an organization that drafts fidelity and crime insurer policy forms.  See, Medidata Solutions, Inc. v. Federal Insurance Company, Brief of Amicus Curiae Supporting Reversal.

In essence, SFAA argued that if the Circuit accepts the ruling below – – that a simple spoofed email scam triggers computer fraud coverage – – the availability of such coverage will likely either become too expensive or too burdensome because of cyber security requirements likely to be imposed by insurers.

The outcome of this contest, whether for against Federal, will no doubt prompt wording revisions in crime and fidelity policies – – and so it is a case well worth following.  But as I reflect on this post, I find it a bit scary that a simple Google search explained in great detail how to perpetrate a fraud.  I thought more “phishing” would be required.  Look that term up if you are curious or if you want more information on how to commit a cyber-crime.

And that’s it for This and That.”

WCM Achieves Favorable Verdict in Queens County Damages Trial

On Monday, November 27, 2017, New York Office Partner Brian Gibbons completed a three week damages trial in Queens County, stemming from a 2014 motor vehicle accident.  The plaintiff, 22 at the time of the accident, was rear-ended on the Northern State Parkway, and taken to the hospital from the scene.  Eight months later, after physical therapy, epidural injections, neurological and orthopedic treatment, she underwent a cervical fusion at C6-7, and filed suit against the defendant owner and operator.   This being a rear-end collision, plaintiff was awarded summary judgment on liability back in 2016, and the damages trial commenced on November 8, 2017.

The trial involved 13 witnesses, including biomechanical experts, plaintiff’s spinal surgeon, Dr. Sebastian Lattuga, and multiple damages experts on both sides.  The plaintiff’s strategy was to stress the lack of any prior complaints or injuries to the young plaintiff’s neck or back, and her consistent treatment after the accident, eventually leading to a necessary spinal fusion surgery.  Our defense focused on the degenerative nature of herniations, and that the low-speed impact did not cause the cervical herniation.

In summation, plaintiff’s counsel asked for $7 million ($1.8 million past pain & suffering, $3.2 million future pain and suffering, and $2 million in future medicals, based upon her life care planner and economist, and claims of future fusion at C5-6.)   We pressed for a defense verdict, based upon the lack of causation.  We also took an aggressive approach during summation, arguing that plaintiff’s course of treatment and surgery was an orchestrated “money grab,” because the herniation could not have been caused by this minor impact.  In the alternative, we recommended $300,000 as an appropriate award, if the jury found plaintiff proved causation and met the serious injury “threshold.”

During the 2nd day of deliberation, the jury awarded plaintiff the $300,000 we had suggested.  (There was a high-low in place at the time of the verdict.)  Seeing that the plaintiff’s final “bottom line” settlement demand during deliberations was $3 million, the verdict was a great outcome after a particularly long damages trial that involved ten expert witnesses.  The jury was attentive throughout the trial, and we think, got this one right.

WCM Associate to Serve as Co-Chair of American Bar Association Committee.

WCM Associate Sathima Jones, who works in WCM’s Philadelphia office, has been selected to serve as Co-Chair of Articles and Editor of the American Bar Association’s Minority Trial Lawyer Committee’s Newsletters. Prior to her appointment as co-chair, Sathima previously served as an author and editor of the American Bar Association’s blog “Practice Points” for three (3) years. Sathima focuses her practice on commercial litigation (including insurance coverage) and property damage litigation.

For more information about this post please e-mail Bob Cosgrove.

WCM Philadelphia Associate Recognized by ABA’s Section of Science and Technology Law.

Philadelphia associate Sathima Jones was recently recognized by the ABA’s Section of Science and Technology Law, which included her 2015 article entitled Blurring the Lines Between Infringement and Inspiration in a CLE Presentation at the 2017 ABA Annual Meeting on August 10, 2017 in New York City.

The CLE entitled Unblurring the Lines: Navigating the Complex Relationship between Technology, Music and Copyright Law, included a distinctive panel of musicians, musicologists and prominent experts in the music copyright litigation field. Notably, Bob Kohn, author of Kohn on Music, who won the 1996 case, Lotus v. Borland (a Supreme Court decision that set wide precedent on the extent of software copyright) spoke on the difficulties in bringing and proving an infringement case. Also in attendance was Jonathan D. Davis, a trademark and copyright litigator with over 35 years of experience and an impressive roster of clients, including Shawn Combs, Usher, and Timbaland.
The panel discussion focused most prominently on the 2015 federal case involving the smash hit “Blurred Lines”, in which the Estate of Marvin Gaye won a substantial award based on claims that Robin Thicke and Pharrell used multiple elements form Gaye’s song “Got to Give it Up.” Similar themes were explored with respect Sprit’s 2016 challenge of Led Zeppelin’s song “Stairway to Heaven” and Tom Petty’s 2015 challenge alleging Sam Smith’s Song Stay With Me shared a similar chorus with “I won’t Back Down.”

Drawing parallel themes from Ms. Jones’ article, the CLE explored the nuances of copyright law that pose difficulty in determining whether an artist has infringed a work or merely been inspired, and the challenges that litigators in proving these cases.

For more information about this post please e-mail Bob Cosgrove.

WCM Partner to Speak at Privacy Shield Certifications Webinar.

WCM Partner Bob Cosgrove, a CIPP-US and CIPM, will be one of two speakers at an August 31, 2017 webinar entitled Privacy Shield Certifications: Things You Need to Know. Mr. Cosgrove will focus his portion of the presentation on:
1. Privacy Shield: Requirements and advantages of participating in the event of litigation.
2. Serving Two Masters: The litigation process, discovery, and data transfer from the European Union.
a. Why discovery involving European Data is a challenge and what Privacy Shield does and does not do to remedy the problem.
3. There is Nothing New Under the Sun: The implications of Privacy Shield on member state data blocking legislation.
a. Blocking legislation in member countries is still effective.
b. How the United States courts have handled blocking legislation and data transfer restrictions.
4. Privacy Shield Enforcement: The arbitration process and liability for failure to comply with Privacy Shield requirements.
If you are interested in the webinar, more information can be found here, or e-mail Bob Cosgrove.

WCM Wins Summary Judgment in Philadelphia Penile Numbing Cream Products Case.

Partner Bob Cosgrove and associate Matt Care were awarded summary judgment in Philadelphia County in the case of Lowe v. The Kama Sutra Company, et. al. In Lowe, the plaintiff, a MMA fighter, sued the designer, manufacturer, and distributor of a prolonging gel, meant to prevent premature ejaculation, after alleging injuries to his penis after repeated use. Lowe utilized the gel in combination with other products and alleged that the gel caused permanent disfigurement to his member and decreased sexual performance.

After years of discovery and countless depositions, WCM was able to convince the court that our client, a wholesale distributor of adult novelties and romance products, did not distribute a defective product. Consequently, the court dismissed all of the plaintiff’s negligence, strict product liability, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose claims, and all cross-claims against our client.

For more information about this post please e-mail Bob Cosgrove.

WCM Is Pleased to Announce That Colleen Hayes Has Been Promoted to Counsel.

Effective July 1, 2017, WCM is pleased to announce that Colleen Hayes has been promoted to the rank of counsel. Colleen, who is based in WCM’s Philadelphia office, focuses her practice on commercial work and specifically insurance contract interpretation and coverage and bad faith litigation. Colleen joined WCM after her 2011 graduation from Villanova University School of Law where she graduated magna cum laude and was elected to the Order of the Coif. She is also a cum laude graduate of Villanova University where she received a B.A. in Psychology. Colleen is barred in New Jersey and Pennsylvania (with a pending admission in New York). She was recently elected to the Executive Committee of the Philadelphia Association of Defense Counsel.

WCM Philadelphia Partner Becomes President Elect of Philadelphia Association of Defense Counsel.

On June 6, 2017, WCM Partner Robert J. Cosgrove was elected to the position of President-Elect of the Philadelphia Association of Defense Counsel, one of the oldest local defense organization in the country (now in its 70th year). Bob is the managing partner of WCM’s Philadelphia office and serves clients in a mix of commercial and defense related matters. As President-Elect, Bob is responsible for supervising all of the PADC’s committees which run the gamut from judicial relations to pro bono.