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Lowenstein Sandler LLP

Eric Jesse

Eric Jesse

Counsel

Expertise

  • Insurance Coverage
  • Employment
  • Antitrust & Trade Regulation
  • Insurance Recovery

WSG Practice Industries

Activity

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

Profile

For over a decade, Eric has advised corporate policyholders on an array of insurance issues in mergers and acquisitions, claim disputes with insurers, and the placement and renewal of insurance programs. In particular, Eric has deep experience with several niche specialty policies:  representations and warranties (R&W) insurance, directors and officers (D&O) policies, and cyber insurance.

Eric is an R&W insurance specialist, and he brings his expertise to private equity and strategic buyers’ deals.  He advises buyers on the selection of an R&W insurer – because they are not all created equal – and on the nuanced intersections between R&W policies and purchase agreements.  Then, Eric negotiates R&W policy terms and conditions, narrows or eliminates deal-specific exclusions, and ensures a smooth underwriting process so that R&W insurance is a step ahead of the deal timeline.

Eric also counsels policyholders on their D&O and cyber insurance programs.  When clients need to understand or enhance their coverage, Eric reads their insurance policies from “cover to cover.”  Because of his deep awareness of the market and caselaw developments, Eric can guide clients to the policy enhancements that can pay dividends when a claim is presented.

When his policyholder-clients have encountered – as they inevitably do – insurers that refuse to pay claims, Eric has recovered hundreds of millions of dollars in insurance proceeds on their behalf.  Eric has resolved claims under a host of policies, ranging from R&W policies to D&O policies to cyber policies, and he has defeated the assortment of coverage defenses that insurers have presented.  To get insurers to pay, Eric focuses on the strategic issues and actions necessary to win, while working to avoid the distractions that can pervade claim disputes.

Eric has also handled multiple pro bono matters through the Lowenstein Center for the Public Interest. Eric is proud to have 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

Antitrust & Trade Regulation | Employment | Insurance Coverage | Insurance Recovery | Insurance Recovery Group | Litigation

Professional Career

Significant Accomplishments

Successfully represented a private equity investor in an R&W insurance claim and secured, without the need for arbitration, an eight-figure recovery. The R&W claim was based on the seller’s breach of a financial statements representation.

Currently representing a strategic buyer in an R&W insurance claim involving a multiplied damages recovery caused by the loss of a material contract.

Advises numerous private equity and strategic buyers on R&W insurance matters in mergers and acquisitions, and has placed 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.

With a hardening insurance market, only compounded by the effects of the COVID-19 pandemic, now is the ideal time for businesses to take a critical look at their insurance program and evaluate open and potential claims. There is no question that upcoming renewals will pose significant challenges for all companies and there are best practices to consider with respect to how to be perceived as a desirable risk to existing and prospective insurers. On the claims front, our clients are carefully reviewing the scope of available business interruption coverage for their COVID-19-related losses and are seeing a noticeable uptick in lawsuits, demand letters, and circumstances that may lead to the assertion of future claims.

Please join us for a webinar that will provide insightful information and guidance on the best steps to take to secure maximum value from your insurance assets and shore up your insurance program notwithstanding the current challenging market conditions.

Topics to be covered:

  • Renewals in the wake of the hard insurance market
  • Business interruption
  • Employee-related claims
  • Cyber insurance

Time: 12-1 p.m. EDT

Those interested in registering may contact [email protected].

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CLE Credit Provided by Lowenstein Sandler

  • This program is approved for newly admitted and experienced attorneys.
  • CA: This program has been approved for 1.0 CA General CLE credit.
  • NJ: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 1.2 hours of total CLE credit. Of these, 0.0 qualify as hours of credit for ethics/professionalism, and 0.0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law, municipal court law, and/or matrimonial law.
  • NY: This program has been approved for 1.0 New York credit in the Areas of Professional Practice.


Professional Activities and Experience

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

Articles

D&O Insurance Renewals: What Corporate Policyholders Need to Know in the “New Normal”
Lowenstein Sandler LLP, April 2020

Many companies are focused on their business interruption coverage in the face of coronavirus disease 2019 (COVID-19). But they must not let management liability insurance be a blind spot. Companies that are renewing their management liability insurance program (directors’ and officers’ (D&O), employment practices, and fiduciary liability) must be prepared for a hard look by underwriters as they react to COVID-19 and consider its effects going forward...

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.

WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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