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Lowenstein Sandler LLP

Eric Jesse

Eric Jesse

Counsel

Lowenstein Sandler LLP
New York, U.S.A.

tel: 973.597.2576
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Local Time: Tue. 01:11

Profile

Eric has extensive experience advising corporate policyholders on a wide array of insurance coverage issues. In particular, Eric has developed a deep understanding and knowledge base in several niche specialty policies, including representations and warranties (R&W) insurance, directors and officers (D&O) policies, and cyber insurance.

On the counseling side of his practice, Eric advises private equity clients and strategic buyers when purchasing R&W insurance to improve the policy’s terms and conditions, narrow the exclusions, and facilitate the underwriting process so R&W insurance matters do not delay the deal. Other types of policies–such as D&O, professional liability, and cyber–can be negotiated too. And because of his deep knowledge of market standards, Eric assists policyholders in identifying and then pursuing policy enhancements that can pay dividends when a claim is presented.

When policyholders face coverage disputes, Eric has helped his clients recover well over $100 million in insurance proceeds. His focus is to resolve the claim efficiently–minimizing the costs and burdens on his clients–while positioning the claim to maximize coverage. Sometimes, this means mediating with insurers before (or shortly after) filing a lawsuit. At other times, litigation is necessary to make insurers pay. Either way, Eric takes a strategic approach, continually focusing on the key issues and actions to win the case.

Eric has also litigated multiple pro bono matters through his work with the Lowenstein Center for the Public Interest. He has helped veterans obtain medical and disability benefits from the United States Department of Veterans Affairs. He has also helped six unaccompanied immigrant minors–who faced abuse and violence in their home countries–obtain permanent residency in the United States.

Bar Admissions

    New York
    New Jersey

Education

George Washington University Law School (J.D. 2009), with honors
George Washington University Columbian College of Arts & Science (B.A. 2006)
Areas of Practice
Professional Career

Significant Accomplishments

Currently representing a private equity investor in a full limits loss under a R&W policy resulting from the seller’s breach of the financial statements representation in the purchase agreement.

Represented numerous private equity and strategic buyers in mergers and acquisitions, placing hundreds of millions of dollars in R&W insurance policy limits.

Represent Mist Pharmaceuticals, LLC in an ongoing coverage litigation against Berkley Insurance Company (Berkley). We secured partial summary judgment reestablishing Berkley’s duty to defend Mist in an investor lawsuit pending in Delaware. Mist was awarded the full amount of the firm’s litigation fees and costs.

Successfully represented a group of employee benefit plans in recovering under their former financial advisor’s crime policy following the advisor’s theft of plan funds.

Successfully represented a corporate policyholder conducting environmental cleanups at 30 sites across the country in the recovery of millions of dollars under historic general liability policies.

Achieved a defense verdict following a trial in Federal Court in Idaho for a manufacturing client who was sued by the United States for purported CERCLA violations.

Represented numerous corporate policyholders to secure enhancements to terms and conditions of D&O, professional liability, employment practices, fiduciary liability, and cyber insurance policies.

Achieved trial and appellate court victories in New York State Court for Sterling Infosystems, Inc., a provider of background checks and consumer reports. As a result of these victories, Sterling’s professional liability insurer has to cover Sterling, up to its full $5 million policy limit, for several putative class action lawsuits alleging violations of the Fair Credit Reporting Act. In addition, the insurer was ordered to reimburse Sterling for the attorneys’ fees and expenses incurred for the coverage litigation.

Speaking Engagements

This half-day program is designed to help companies navigate current cybersecurity and data privacy issues, two themes that continue to generate press headlines as well as client concern. This program is open to in-house counsel as well as senior executives, and will include the following CLE credited presentations:

"Developments in EU Privacy and HIPAA Law: The Stakes Rise for U.S. Companies," presented by Tara D'Orsi, Senior Counsel, Lowenstein Sandler; and Mary Hildebrand, founder and Chair of the Privacy and Information Security practice, Lowenstein Sandler.

"Strategies for Managing Cyber Risk and Maximizing Insurance Recoveries: Rapid-Fire Case Studies," presented by Lynda Bennett, partner and Chair of the Insurance Recovery Group, Lowenstein Sandler; Eric Jesse, counsel, Lowenstein Sandler; James Mottola, Director, Forensic Investigations/Litigation Support, Sobel & Co. LLC; and Andrew Porter, Senior Vice President and General Counsel, INTTRA Inc.

"2016 Cyber Hot Spots: Laws and Best Practices," presented by Gurbir Grewal, Acting Bergen County Prosecutor, Bergen County Prosecutor's Office; Matthew Oliver, CIPP/US, partner and Chair of the E-Discovery Task Force, Lowenstein Sandler; and Matt Savare, partner, The Tech Group, Lowenstein Sandler.

A complete agenda for the day may be found at https://lowensteinsandlercyberday2016.splashthat.com/.

In-house lawyers in industries far beyond the tech world–such as financial services, pharmaceuticals, insurance, and consumer electronics, to name only a few–need practical guidance on the many ways that cybersecurity and privacy issues can affect all stages of business, from the valuation of data as an asset to the allocation of risk.

In response to this need, Lowenstein Sandler has expanded our annual program to include an even deeper dive into cybersecurity issues of special interest to GCs, CPOs, and CIOs. Our interdisciplinary group of privacy and data security specialists has teamed with in-house counsel to develop programming aimed to help corporations and executives navigate the potential risks, regulations, and benefits at stake, as well as best practices to address these issues.

Topics include:

  • Data Protection Law Developments: A Year in Review and What to Expect in 2020
  • Artificial Intelligence: Preparing for the Future of Business
  • Cyber Insurance: What It Covers, Why You Need It, and How To Get It
  • Blockchain Promises Solutions Across Industries, But Will it Deliver?
  • Telehealth and Telemedicine: The Future of Health care?
  • Biometric Data: From Finger Scans to Facial Recognition, a Deeper Dive into Artificial Intelligence
  • State Privacy Laws: A Deeper Dive into New and Amended U.S. State Privacy and Cybersecurity Laws

Program time: 7:30 a.m.-2:15 p.m. 

Program location: Lowenstein Sandler LLP, One Lowenstein Drive, Roseland, New Jersey 07068; 973.597.2500. 

CLE credit available.

Wi-Fi access and conference space will be available to take phone calls and stay connected to your workday.



Professional Activities and Experience

Accolades
  • Outstanding Student Award - George Washington University Law School Clinical Legal Association

Articles

Broad and Timely Notice to All Insurers: Critical to Protect and Maximize Your Insurance Asset
Lowenstein Sandler LLP, September 2016

Many policyholders unwittingly put their insurance coverage at risk by failing to provide insurers with prompt and broad notice of a lawsuit or claim. Initially, policyholders tend to focus their attention on the primary coverage since that insurer has an immediate obligation to defend the claim. Excess insurers are often overlooked because the size or scope of the potential liability is not immediately apparent when the claim is presented...

Additional Articles

The benefits of directors and officers insurance policies have been curtailed by the breadth of some courts' broad application of the "insured vs. insured" exclusion, which is common to D&O policies. Some courts have expanded the exclusion's scope to reach claims brought by or on behalf of the bankruptcy estate against insured directors and officers. Nevertheless, there are certain steps that bankruptcy and insurance practitioners can take to avoid or minimize the pitfalls of the insured vs. insured exclusion.

(subscription required to access article)

Rampant, worldwide cyber security incidents such as data breaches, phishing attacks, and malware across various industries have caused tremendous damage (physical, monetary, and reputational) to companies and consumers. One only has to open a newspaper (likely a digital one) to witness a new attack. Just in recent years, billions of records have been compromised in massive, high-profile breaches.

Although not a new phenomenon, ransomware has emerged as another nefarious cyber threat. Insurance company Beazley reports that the number of ransomware attacks reported by its insureds quadrupled from 2015 to 2016. In 2016 and 2017, various strains of ransomware such as WannaCry and Petya have entered the global lexicon and wreaked havoc on hundreds of thousands of computers.

When a company is in bankruptcy, insurance policies are a critical, but often overlooked, asset of the estate. For instance, policy proceeds may be significant, and possibly the only, source of recovery for some creditors. For debtors, company executives increasingly need to rely on the protections of directors and officers (D&O) insurance to defend and resolve creditors’ claims that their mismanagement drove the company into bankruptcy.

Unlocking the benefits and protections of insurance often presents challenges. Insurers do not just ‘open their checkbook,’ and they often insist on strict compliance with policy terms and conditions, particularly if doing so allows them to deny coverage. Therefore, bankruptcy practitioners must carefully navigate the road to coverage, avoiding pitfalls along the way that could lead to a claim denial. While there are many potential pitfalls, there are four common ones for every bankruptcy lawyer to be aware of: 1) the assignability of insurance proceeds; 2) the impact of a broad release provided to directors and/or officers; 3) the characterization of allegations against an insured and settlement payments, and 4) judicial limitations on executives’ access to defense coverage.

This article was originally published in the February 2019 issue of New Jersey Lawyer magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.

While cyber insurance has become increasingly popular over the past several years, many companies still lack this protection. Companies without cyber coverage might look to their “traditional” policies, like general liability or crime, but coverage for cyber risks under those policies can be limited. This guest article by Lowenstein Sandler attorneys Eric Jesse and Jason Meyers reviews recent case law on the limits of general policies and discusses how understanding – and negotiating – the scope of cyber coverage is critical to maximizing the benefits that cyber insurance provides. See “Choosing Cybersecurity Insurance in a New Risk Environment” (Nov. 6, 2019).

What Cyber Insurance Covers

Standalone cyber policies generally provide a hybrid of “first-party” and “third-party” coverages. The first-party coverage insures loss that insureds suffer because of a cyber incident. It generally includes the following: 

  • Breach Response Costs. When a data breach occurs, this coverage typically insures legal fees the insured incurs to understand its notification obligations; computer forensic costs to investigate the scope of the breach; and costs for notification to affected individuals, credit/identity theft monitoring and call service centers.
  • Business Interruption. This coverage insures against lost profits and extra expenses (beyond usual business expenses) that a company incurs if a system failure impairs the company’s ability to operate. Some policies also offer contingent business interruption coverage when the insured cannot operate because a vendor has suffered a cyberattack.
  • Cyber Extortion/Ransomware. This coverage applies when a cybercriminal hacks into the company’s computer system and threatens to damage data, introduce a virus or shut down access to the network unless a ransom is paid.
  • Cyber Crime. Cyber policies may offer cyber-related crime coverage such as: (i) computer fraud (a criminal using computers to steal money); (ii) funds transfer fraud (a criminal tricking a bank into transferring funds from the insured’s account); and (iii) social engineering (a criminal tricking the insured’s employee into transferring money).
  • Data Restoration. Policies with this coverage generally cover the costs to restore or replace lost or damaged data or software because of a cyber incident.

(subscription required to access article)


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