In exclusive interviews on Lowenstein's YouTube channel, Andrew Reidy discusses:
Andrew represents policyholders in disputes against insurance companies in connection with a wide variety of insurance policies, including directors and officers (D&O), commercial liability, property, errors and omissions, crime, and fidelity policies. His clients, including Fortune 100 corporations and governmental entities, rely on his "deep subject matter expertise" (Chambers) in insurance-related disputes throughout the country.
Andrew's practice includes a broad spectrum of legal services, from counseling companies on how to maximize an insurance recovery to representing policyholders in mediation, arbitration, litigation, and trial in state and federal courts. In the course of 30 years of representing policyholders, he has successfully tried insurance cases and argued complex insurance issues before numerous courts, including the highest courts of Massachusetts, Iowa, and Delaware.
Andrew has authored and co-authored hundreds of articles and frequently lectures on coverage issues. He has been a regular speaker at programs sponsored by, among others, Forbes, Mealey's, The Risk and Insurance Management Society, and the American Bar Association. He has also appeared on Court TV regarding D&O insurance.
Andrew is recognized as a leading lawyer nationally by Chambers USA. According to the 2016 edition of the guide, sources say, "He probably has some of the best practical common-sense judgment that I've ever seen in a lawyer. He's able to hone in very quickly on the strengths or weaknesses in a client's case and he will be honest with his clients both ways."
Insurance Coverage | Insurance Recovery | Insurance Recovery Group | Litigation
Represented several Blue Cross Blue Shield entities in litigation to obtain insurance coverage for RICO class actions. Obtained significant rulings about the broad scope of reinsurance discovery. Matter settled formally on the eve of trial.
Represented an equipment manufacturer in obtaining summary judgments for tens of millions of dollars for defense costs relating to asbestos cases; successfully argued appeal upholding the award of coverage.
Represented Goodrich against more than 30 insurance companies in an environmental liability coverage dispute. Tried the case against non-settling insurers, winning an award of $42 million for cleanup and defense costs, a future award worth tens of millions of dollars, a bad faith verdict, and an attorneys' fees award of $12 million. The decision was later affirmed on appeal.
Represented the former head of Tyco Inc. in obtaining a declaration that Chubb had a duty to defend and pay defense costs in civil and criminal actions; the ruling was affirmed on appeal.
Represented Barrick Gold Corporation in mediation to obtain insurance coverage for settlement of a securities class action; the matter was resolved in mediation.
Lowenstein Sandler is partnering with Bloomberg Law to host a complimentary executive breakfast briefing on innovation and risk. This event will explore the critical areas of compliance and risk management for companies that must continue to innovate to thrive. The speakers will discuss innovations that leverage the Internet of things to create new opportunities, revenue streams, and differentiated products for businesses. The invitation-only Bloomberg NEXT series is designed to bring together senior professionals who are shaping the future of business and work, technology and innovation, law and governing. Jeff Blumenfeld will kick off the event with an introduction and Andrew Reidy will speak on a panel entitled "The Risk of Connectivity."
Andrew Reidy will introduce the panel "Spotlight on Corporate Litigation" including speakers Michael Brizel, Executive Vice President & General Counsel at Fresh Direct; Michael McQueeney, Senior Vice President, Deputy General Counsel, Litigation and Regulatory Affairs at Pearson; and David Shapiro, Senior Vice President & Chief Legal Officer at Air Canada. The panel will be moderated by Hih Song Kim, Senior Vice President, General Counsel at Stoli Group. The Argyle Executive Forum brings together leading senior legal executives for a full day of thought leadership content and networking opportunities with an agenda geared toward general counsels, chief legal officers, chief compliance officers, and other in-house counsel.
Lowenstein Sandler is hosting a breakfast seminar entitled "The False Claims Act – Recent Developments, Best Practices, and Pursuing Insurance To Manage the Risk." Scott McBride, Andrew Reidy, and Joe Saka will address precautionary steps companies can take to comply with the FCA, tips for strategically responding to a government investigation, and how businesses may be able to utilize insurance coverage to manage the risk of FCA claims. The seminar will also highlight the intricacies of the FCA and emerging trends, including the surge in well-funded whistleblowers with sophisticated counsel, the targeting of individual officers and directors, and the increased exposure of financial intuitions and financial services companies.
You have an insurance claim and management wants a quick but fair resolution with the insurance company. What steps should you take to best position the matter for settlement? What will get your claim resolved more promptly? Are there different strategies to consider for claims in litigation and those not in litigation?
Our program speakers will address cyber exposures and how insurance will help manage cyber risk including:
For more information, email [email protected]
How does your business minimize its risk and liabilities in contractual relationships with vendors, contractors, and others? Your contracts may contain “additional insured” provisions that protect your business under another organization’s general liability insurance policy. You might even be engaged in such an arrangement. But do you know enough to make sure your interests are protected?
Join the lawyers from Lowenstein Sandler’s Insurance Recovery practice and a broker from Lockton Companies who work closely with these issues to gain answers to these and other questions as we explore how to identify, minimize, and avoid additional insured coverage risks.
Attend this session to learn about these and other issues:
This webinar takes place 2-3 p.m.
NOTE: We have developed a brief survey to understand your company’s additional insured practices. We would appreciate your response and will share key findings during the webinar. Please copy and paste this link into your browser for the survey: https://lowensteinsandler.typeform.com/to/KvraGX
Although you may be familiar with your organization’s insurance policies, is your company utilizing best practices to maximize coverage for claims and losses?
The panel for this program will provide insight from two different perspectives:
For more information or to register, please email [email protected]
The loss of life and economic costs from the COVID-19 pandemic have been staggering. Over the past few weeks, the entire business landscape has changed in fundamental ways. COVID-19 has forced companies to reconfigure their operations, reevaluate their forecasts, and decrease their budgets. Insurance policies may help offset potential losses and liabilities, but misinformation is being widely disseminated regarding what is covered and what is not. Our webinar is designed to explain how to maximize insurance coverage for your losses and liabilities.
We will address issues that are important to your business, including:
Timing: Wednesday, May 6, 2020 - 10:00 - 11:00 a.m. EDT
If you are interesting in registering for this event, please contact: [email protected]
To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.
Companies spend hundreds of millions of dollars annually to ensure compliance with the FCPA. But, regardless of robust policies and regular training, some employees may take shortcuts in seeking to obtain business abroad. To fully manage the risk of FCPA claims, companies should examine their liability insurance policies – specifically their directors and officers (D&O) policies as they are most likely to respond to FCPA claims – to protect themselves from this risk.
Businesses purchase D&O policies to cover claims made against their directors and officers and, in some instances, the company. However, not all policies are identical, and the protection provided can vary greatly depending on the applicable language. In assessing the possibility and breadth of coverage for FCPA claims, here are a few critical (though not exhaustive) questions a company should consider.
New York always is at the vanguard of innovation when it comes to making people’s lives better with such inventions as air conditioning, credit cards and, not to be forgotten, the Cronut. This year, New York again is at the forefront of change. On March 1, 2017, the New York Department of Financial Services (DFS) issued “first-in-the-nation” cybersecurity regulations. 23 NYCRR 500. Governor Andrew Cuomo stated that the regulations will help assure that the financial services industry “has the necessary safeguards in place in order to protect themselves and the New Yorkers they serve from the serious economic harm caused by these devastating cyber-crimes.”
The regulations impose stringent requirements on all businesses regulated by DFS, including banks, insurers, and other financial services companies. Subject entities, for example, will be required to appoint a chief information security officer, conduct regular cyber testing, provide cybersecurity awareness training, and implement multi-factor authentication. By August 28 of this year, covered businesses are required to meet certain of the regulations. By Feb. 15, 2018, companies are required to file a certification confirming compliance with the regulations. By March 2019, companies will be required to look beyond their own practices to ensure that vendors and third-party contractors also are meeting certain standards.
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In the midst of the COVID-19 pandemic and public health crisis, landlords and tenants alike found themselves in a most precarious position: state and municipal governments across the country restricted access to offices and industrial and retail spaces via mandatory stay-at-home orders. All the while, except in the rarest of circumstances, tenants were still technically obligated by the terms of their leases to pay rent, and landlords’ payment obligations to lenders, taxing authorities, and other third parties continued unabated despite the mandatory closure of most businesses and workplaces. However, perhaps unsurprisingly in light of the unprecedented nature of the government’s closure orders, in some U.S. cities, it was reported that nearly 50 percent of commercial tenants failed or refused to pay their rent for the month of May. The owners of commercial real estate cannot pay their mortgages, taxes, insurance premiums, and maintenance and other ongoing costs unless they receive rent from their tenants, so many landlords are today finding themselves cash-strapped and at the mercy of their creditors. As landlords try to find a way to survive in a climate of mounting rent defaults and pending foreclosures, negotiating rent abatements or deferrals with their tenants and forbearance with their lenders does little to stop their bleeding. Gov. Andrew Cuomo’s executive order in New York, along with many similar moratoriums issued across the country’s large cities, have served to freeze nonpayment and eviction cases from being adjudicated in the courts until late summer, further tying the hands of landlords and likely eventually resulting in a deluge of dispossession judgments against tenants and an overloading of our country’s landlord-tenant courts.
The retail and hospitality sectors have suffered the largest losses during the COVID-19 pandemic. In an effort to help slow the spread of the coronavirus, governments ordered malls and shopping centers closed across the U.S. and more than 47,000 retailers across the U.S. temporarily shut their doors or significantly adjusted store hours. In April, rent collection ranged from a mere 15 percent to 30 percent for retail landlords with higher concentrations of shuttered businesses, according to an estimate from brokerage firm Marcus & Millichap. It is estimated that the U.S. retailer default rate on corporate debt will surge from 4.7 percent in March 2020 to about 14.4 percent in March 2021, according to Moody’s. By the same token, with business and leisure travel at virtually zero, hotels are forecast to suffer the most, with the average occupancy rate across all U.S. hotel sectors plummeting to 40.1 percent in 2020 from 66.1 percent in 2019.
In today’s climate, tenants are just as desperate to try to get out of paying rent as their landlords are to try to get them to pay rent. For tenants seeking the quick fix of rent relief, the language within the four corners of virtually all leases is unfortunately unlikely to offer any solace since the overwhelming majority of leases fail to offer tenants payment protection via force majeure provisions and fail to condition the payment of rent on the building being open for business. In addition, outside the four corners of the lease contract, while common-law arguments favoring granting some modicum of rent relief on equitable grounds such as constructive eviction, unconscionability, or frustration of purpose have become vogue, they have not yet been tested in the courts. In response to this impasse, landlords and tenants have filed lawsuits asserting and assailing these and other theories. The NBA, Ross Stores, and the Gap are three of many well-known companies bearing the brunt of litigation trying to break the COVID-19-induced rent logjam. Decisions in these cases are likely to vary based on jurisdiction, individual lease provisions, and numerous other factors, and are unlikely to provide the broad salve that the commercial real estate industry as a whole needs in order to stabilize itself.
In view of these issues, landlords and tenants have turned to existing insurance products as a potential source of recovery. To date, the efforts to recover losses have focused on seeking recovery under property insurance policies, including pursuing claims for business interruption. Business interruption coverage includes coverage for gross earnings, gross profits, extra expense, and, often, rental income. The policies typically require physical loss or damage to trigger coverage. Even though there is precedent to support the view that COVID-19 satisfies the physical loss or damage requirement, insurers have insisted that COVID-19 does not cause physical loss or damage.
Some insureds are seeking recoveries under specific additional coverages in their property policies. For example, civil or military authority coverage is triggered when an order of civil or military authority prohibits access to an insured location, provided that the order is a direct result of physical loss or damage at the insured location or within a specified distance of the insured location. Communicable disease coverage, under certain circumstances, covers losses relating to the actual presence of a communicable disease. These and other coverages often have substantially lower sublimits that make the coverage far less valuable than the primary coverages.
The insurance industry has staunchly opposed legislative and executive attempts to regulate the insurance response to the pandemic under currently existing policy forms. In response to legislation proposed in the District of Columbia to help businesses secure business interruption coverage, the insurance industry has argued that paying COVID-19-based business interruption claims could bankrupt the insurance industry. The CEO of Chubb threatened a constitutional challenge to any legislative or executive action.
The path to recover under existing policy forms will likely include litigation and delay. To date, more than 300 lawsuits have been filed against insurers relating to coverage for COVID-19 losses. In light of differing facts underlying the claims and the likelihood that state law may vary on the critical insurance issues, the scope of coverage will remain unsettled for some time. Prospectively, insurers will likely act to add exclusions to eliminate or narrow coverage for any COVID-19 exposure and exposure for any other pandemics or governmental shutdowns.
The commercial real estate industry clearly needs a shot in the arm to vaccinate itself against a problem like this ever occurring and stifling the industry again. The delay and lack of clarity associated with obtaining coverage under current forms require a new model. To be equitable to all stakeholders, any solution should balance the risk between landlords and tenants. It would therefore seem that the development of a new real estate-specific insurance product would be just what the industry needs in order to get healthy and avoid a pandemic or a governmental shutdown from ever again wreaking havoc like this on the industry. To that end, in order to protect landlords across the country who are acting in good faith to keep their buildings accessible, clean, and safe during a pandemic, and tenants who are simply complying with government orders to remain home and keep their businesses shut for the benefit of public health, Congress should take action to create and support with federal funding a widely and readily available rental stream protection insurance product with a large national pool of participants that will defray costs to the average policyholder and protect both landlords and tenants in the wake of government-ordered shutdowns due to a public health or other crisis which restrict the ability of tenants to use commercial real estate for its intended purposes. Fortunately, Congress already has models for a program to respond to the needs of landlords and tenants in the midst of a catastrophic event without protracted, state-by-state litigation to establish the extent of insurance coverage.
In 1968, Congress responded to the escalating cost of property damage caused by floods by creating the Federal Emergency Management Agency (FEMA) administered National Flood Insurance Program (NFIP). FEMA collaborates with private insurance companies to provide affordable insurance to landlords and tenants alike in the event of a catastrophic event. The primary benefit of this insurance product is that it is backed by the federal government. Private insurance companies administer claims, and the federal pays flood claims even in the absence of a disaster declaration by the U.S. President.
Following the Sept. 11, 2001 terrorist attacks, landlords and tenants looked to property insurance and their business interruption coverage grants to provide coverage for loss. Due to the catastrophic costs of the attack, insurers began to eliminate coverage for loss caused by terrorist attacks or offer coverage at prohibitively expensive rates. In the wake of this disaster, Congress passed the Terrorism Risk Insurance Act (TRIA). Although the program was designed to be temporary, Congress has reauthorized or extended the program at least four times since its inception. The TRIA makes terrorism insurance available and more affordable by guaranteeing federal funding for insured losses following an act of terrorism. The TRIA is designed to minimize and spread loss over a period of time by requiring insurers to cover the entire amount of small losses and part of medium-size losses, with the government paying more as the size of the loss grows. The TRIA includes provisions allowing the government to recoup its payments toward smaller losses over time through a levy on insurance policies.
Similar to the NFIP and the TRIA, rental income stream protection for loss caused by a pandemic should be designed to spread loss over time and across the industry in the following ways:
A widely available insurance product to protect landlords and tenants adversely impacted by government orders in public health or other crises would ultimately cost the federal government less than the current practice of using multitrillion-dollar stimulus programs. Some members of Congress already have begun to take action to minimize the cost caused by this pandemic and future health crises. New York Congresswoman Carolyn Maloney has introduced the Pandemic Risk Insurance Act that she modeled after the TRIA. Congressional action now will ensure that the economic fallout to the commercial real estate industry caused by the current pandemic is not repeated in the face of future stay-at-home orders and similar government directives.
Reprinted with permission from the June 22, 2020, issue of National Real Estate Investor. © 2020 Informa USA, Inc. All Rights Reserved. Further duplication without permission is prohibited.
To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.
© Lowenstein Sandler LLP, 2020