It’s International Level Crossing Awareness Day. Ignore the phone, unplug the headphones and don’t be distracted at level crossings #ILCAD http://pic.twitter.com/s5BwnuvVZt It’s International Level Crossing Awareness Day. Ignore the phone, unplug the headphones and don’t be distracted at level crossings #http://ILCADpic.twitter.com/s5BwnuvVZt syndicated from http://ift.tt/2qyreAv via Blogger It’s International Level Crossing Awareness Day. Ignore the phone, unplug the headphones and don’t be distracted at level crossings #http://ILCADpic.twitter.com/s5BwnuvVZt
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Police locate human remains in search for Matthew Leveson http://pic.twitter.com/pYHoJ1BhlC Police locate human remains in search for Matthew http://Levesonpic.twitter.com/pYHoJ1BhlC syndicated from http://ift.tt/2qyreAv via Blogger Police locate human remains in search for Matthew http://Levesonpic.twitter.com/pYHoJ1BhlC Great to meet team captain Peter Dane from CSNSW Cougars rugby league team today. We’ve been proud to support you this season! @NSWJustice http://pic.twitter.com/DeAkYarq5o
via Blogger Great to meet team captain Peter Dane from CSNSW Cougars rugby league team today. We’ve been proud to support you this season! @http://NSWJusticepic.twitter.com/DeAkYarq5o Mid North Coast correctional officer Louise Bud & inmates breed worms to donate to local schools. Worm farms teach kids how to reduce waste. http://pic.twitter.com/kHWV8CZH4U
via Blogger Mid North Coast correctional officer Louise Bud & inmates breed worms to donate to local schools. Worm farms teach kids how to reduce http://waste.pic.twitter.com/kHWV8CZH4U Good news for the #CentralCoast. @NCATNSW is moving back to Gosford Gateway Centre in July: http://bit.ly/2qC3xe5 Good news for the #CentralCoast. @NCATNSW is moving back to Gosford Gateway Centre in July: http://bit.ly/2qC3xe5 syndicated from http://ift.tt/2qyreAv via Blogger Good news for the #CentralCoast. @NCATNSW is moving back to Gosford Gateway Centre in July: http://bit.ly/2qC3xe5 Lots of folks were wondering whether at the Federal Trade Commission (FTC) it was “School’s Out” with a shortage of Commissioners and a new administration in the White House. A recent case involving the telemarketing of student loan debt relief services makes clear that, at least in certain areas, school is still in session. The case also highlights the growing regulatory scrutiny on the student loan space. In obtaining a temporary restraining order shutting down a group of related companies, the FTC alleged that in “many instances,” the companies failed to deliver any of the promised services. Specifically, according to the FTC, the defendants collected upfront and monthly fees in exchange for enrolling consumers in student loan forgiveness or income-driven repayment programs and to improve consumers’ credit scores. The FTC found that many consumers received no services and many went into further debt. Although this case seems to be the type of “hard core” fraud that Acting Chair Ohlhausen has said she wants the Commission to focus on, it also signals the FTC’s concerns regarding—and heightened attention to—the student loan market. There is more than $1.4 trillion in student loan debt, and the FTC, as has the Consumer Financial Protection Bureau (CFPB), appears to be going where the action is. In the Complaint, the FTC included a section devoted to describing the market as a whole, including detailing the various loan forgiveness programs developed by federal and state agencies to help address the growing problem. From the FTC’s perspective, the complicated and patchwork nature of student loan programs, and consumers’ lack of understanding, make it ripe for fraud or abuse. As stated in the Complaint, “consumer can apply for forgiveness and IDR program through their student loan servicers at no cost; these programs do not require the assistance of a third-party company or payment of fees.” Given the size of the student loan market it would be surprising if this is the last we hear from the FTC on this industry. Similarly, the FTC appears to show no signs of slowing down on the attack on fraudulent telemarketing related to debt-related services. At least on these types of issues companies need to be very careful, or they will get sent to the principal’s office.
via Blogger Student Loan Market in FTC’s Cross Hairs Trigger warning for Texas readers: This entry will discuss forced pooling. You may now retreat to your “safe space”, where “no guvment-sumbitch-bureaucrat can conspire with [name of large oil company] to steal my stripper well.” TDX Energy, L.L.C. v. Chesapeake Operating, Inc. doubles down on XXI Oil and Gas v. Hilcorp Energy Company from the Louisiana Third Circuit, while giving a useful tutorial on the purpose and effect of Louisiana forced pooling. Caveat: Pay attention below to the statute as amended. The context The statutory scheme requires the operator of an Office of Conservation-established drilling unit to give notice of the costs of drilling a well to owners of unleased interests if the operator wants to recover drilling costs. If an owner doesn’t participate, the operator can recover out of production the nonparticipating owner’s share of expenditures, along with a risk charge of 200%. The risk charge does not apply to mineral servitude owners. Chesapeake operated a unit well that was spudded when 63 acres were unleased. Those acres were leased before drilling ended; the leases were transferred to TDX retroactively but not recorded until after drilling ended. Who gets the notice? As held in XXI v. Hilcorp, La. R. S. 30:103.1 requires the operator, upon request, to send reports when the operator has no lease. By failing to send timely reports to a lessee with leases in lands upon which the operator has no lease, the operator forfeited its right to contribution for well costs. The court reasoned that Sections 103.1 and 103.2 must be read together. Section 103.1 is directed toward the operator’s obligation the operator to, upon request, issue statements about drilling and operating costs, while 103.2 explains when the operator forfeits rights to demand contribution. References in the statute to “unleased interests” are to any interests unleased by the operator, not unleased generally. Who must pay the risk charge Under 30:10(A)(2)(a)(i), when an owner notified of estimated well costs elects not to participate, the operator can recover out of production the nonparticipating owner’s share of actual reasonable expenditures plus a 200 percent risk charge. The operator can’t collect a risk charge when it fails to provide timely notice. Under the law then in effect, notice was only required to be presented to leaseholders. Unleased tracts required no notice. Notice requirements are based on the date leases are recorded – not the date leases are signed. Because notice was sent to TDX after the leases were recorded, which was also after drilling was completed, the notice was untimely. Chesapeake could not recover a risk charge. An owner not notified still bears its tract’s share of actual reasonable expenditures but no risk charge. Pay attention to the amended statute The rule has changed in favor of the operator. 30:10(A)(2)(a)(i), was amended in 2016 added an operator “ … who has drilled a unit well” may send a notice. This amendment clarifies that notice of actual costs is required when the well has been drilled. A musical interlude for Gregg Allman, RIP, and his inspiration. Louisiana Forced Pooling – Timing is Important syndicated from http://ift.tt/2qyreAv via Blogger Louisiana Forced Pooling – Timing is Important In the current world, cyber security is critical for every organization. Cyber insurance is an important part of every organization’s cybersecurity program. In the following guest post, a Senior Associate in D’Amato & Lynch, LLP’s Fidelity Bond Practice Group, examines how business can best match their cyber insurance to their cyber security needs. I would like to thank David for his willingness to allow me to publish his article as a guest post. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is David’s guest post.
********************************** Time and again, insureds seek payment for cybercrime claims only to be denied by their insurers and the courts that review the subsequent lawsuits that are inevitably filed by insureds. As courts strictly interpret cybercrime policies, insureds need to ensure that their cybercrime policies provide adequate coverage for the known risks and perils of their businesses. Such coverage can only be achieved through a diligent review of business models and processes to match them with a proper insurance program. Recently, federal appellate and district courts denied insureds’ claims for cybercrime coverage where the insureds’ insurance program did not match their business models and processes. In Taylor & Lieberman v. Federal Insurance Company, the Ninth Circuit held that losses resulting from wire transfers that emanated from fraudulent emails were not an unauthorized entry into a computer system or an introduction of instructions that propagated themselves through the computer system.[1] Thus, the court held that coverage under the computer fraud coverage was unavailable. Further, the court held that the funds transfer fraud coverage was not implicated because the insured directed separate emails to the financial institution to wire the funds that ultimately caused the loss. The insured, Taylor & Lieberman, was an accounting firm that made certain payments on behalf of its clients. With respect to the client at issue, the client executed a power of attorney in favor of the principal of the insured. The insured’s employee received three emails purportedly from the client requesting that the insured issue certain wire transfers. The first two emails were from the client’s email account and the third email was from a separate email account. Upon receiving the third email, the insured’s employee called the client and discovered that the client’s email account was compromised and sought to recover the funds that were previously wire transferred. While certain funds were recovered, the insured incurred a loss of approximately $99,433.92. The insured submitted a claim under its Forefront Portfolio Policy that provided certain coverages including computer fraud and funds transfer fraud coverage. The insurer denied coverage for the claim and the insured brought suit. On the parties’ cross motions for summary judgment, the district court granted the insurer’s motion for summary judgment and the insured appealed. In analyzing the competing arguments regarding the coverage, the Ninth Circuit noted that the emails, which contained the instructions to the insured to wire the client’s funds, “were not the type of instructions that the policy was designed to cover.”[2] The email stood in contrast to the malicious computer code that the policy was intended to cover. Ultimately, the court concluded that claim did not come within the computer fraud coverage. With respect to the funds transfer fraud coverage, the court reviewed the insuring clause which provided: Fund transfer fraud encompasses: Fraudulent written . . . instructions issued to a financial institution directing such institution to transfer . . . Money from any account maintained by an Insured Organization at such Institution, without an Insured Organization’s knowledge or consent. The court noted that the insured knew about its directions to its financial institution. Specifically, the insured received the instructions in the emails and then sent an email to its financial institution to wire transfer the funds that were lost. Thus, while the instructions the insured relied upon were fraudulent, the insured not only had knowledge of its own directions, but also consented to them because it directed such instructions to its financial institution. Therefore, the court held that the claim was not within the insuring agreement.[3] In InComm Holdings and Interactive Communications International, Inc. v. Great American Insurance Company, the United States District Court for the North District of Georgia held that losses related to fraudulently redeemed chits for loading value onto debit cards were not covered because (i) the fraudulently redeemed chits resulted from the use of a telephone and not a computer; and (ii) the losses did not result directly from the fraudulently redeemed chits, but from the payments after use of the debit cards.[4] In InComm, the insured operated a debit card processing system for various issuing banks whereby debit card holders would purchase chits to from a retailer to add funds to the debit cards. After purchasing the chits, the retailer sent the payment to InComm. Additionally, the customer would call InComm’s system and enter certain codes from the chit and debit card. Upon redemption of the chit, InComm would wire transfer funds to a bank account at issuing bank. Such bank account was held by the issuing bank as a fiduciary for InComm for the benefit of the cardholder. When the cardholder used the debit card to purchase merchandise, the issuing bank would deduct the funds from the account and the merchant would be paid. If the cardholder made a purchase prior to InComm transferring the funds, the issuing bank would pay for the cardholder purchase and be reimbursed by InComm’s wire transfer. From November 2013 to May 2014, a flaw in the system allowed for multiple credits using the same chit if the codes were entered from simultaneous telephone calls to InComm’s system. The losses totaled $11,477,287 resulting from 25,553 unauthorized redemptions of 1,933 separate chits, or an average of 13 redemptions per chit. On May 6, 2014, InComm began investigating the duplicate redemptions, discovered the system flaw in an hour and repaired the flaw in its system within a subsequent hour to prevent further unauthorized redemptions. On May 23, 2014, InComm filed a claim with Great American Insurance Company under Computer Fraud Insurance Provision which provided: [The insurer] will pay for loss of . . . money . . . resulting directly from the use of any computer to fraudulently cause a transfer for that property from inside the premises or banking premises: i. to a person(other than a messeger) outside those premises; or ii. to a place outside those premises.[5] On May 12, 2015, Great American denied InComm’s claim. InComm filed a lawsuit against Great American on July 28, 2015. Upon competing motions for summary judgment filed by the parties, the court reviewed the insuring agreement as applicable to the loss at issue. In particular, the court looked at the process for redeeming chits and concluded that the claim was not covered because the chit redemption process involved a telephone. In reaching its holding, the court noted that “[a] ‘telephone’ is not a ‘computer.’”[6] Further, the court noted that “[t]here is no evidence that cardholders even realized their telephone calls resulted in interaction with a computer.”[7] The court went on to analyze the relationship between the unauthorized redeemed chits to the losses claimed. In particular, the court noted that InComm’s transfer of funds to the issuing bank did not result in the loss of funds because certain issuers still retained certain of the wired funds. The court stated that the loss of funds only occurred when the cardholder used the card to pay for a transaction and the issuing bank paid the seller for the transaction. Therefore, the loss occurred subsequent to InComm’s transfer of funds. The court went on to note that even if the loss were to occur upon InComm’s transfer of funds to the issuing bank, the loss would still not be a direct result of the unauthorized redemption of chits. Specifically, InComm wired the funds pursuant to its contract with the issuing bank without reconciling or verifying that the chits were legitimate. In other words, InComm’s loss resulted from InComm deciding to wire the funds without properly investigating the duplicate chit redemptions. In Taylor & Lieberman, the insured purchased insurance coverage from losses resulting from computer viruses, but not for the so-called “socially engineering” emails. Taylor & Lieberman did not appear to match its payment processes which involved human intervention and the issuance of instructions to its bank to the insurance it purchased. Similarly, in InComm, the insured purchased insurance coverage for losses resulting from computer fraud, but not instructions received by telephone. InComm had a mismatch between its computer fraud coverage and its business model of receiving telephone enabled instructions for chit redemptions. Additionally, InComm’s insurance program did not provide coverage for its indirect role in the payment of funds for the cardholder’s transactions. As courts appear to be strictly interpreting insurance policies, insureds need to be diligent in reviewing their business models and processes for areas of potential vulnerabilities and losses. Such reviews should form the basis of an insured’s request for insurance. It is likely that such an insured’s request will result in an insurance program that provides adequate coverage against the perils that really exist for an insured.
David Bergenfeld, Esq., is a Senior Associate in D’Amato & Lynch, LLP’s Fidelity Bond Practice Group. He thanks to Neil R. Morrison, Esq., a Partner in D’Amato & Lynch, LLP’s Fidelity Bond Practice Group, for editorial support.
[1] No. 15-56102, 2017 WL 929211 (9th Cir. Mar. 9, 2017). [2] Id. at *2. [3] The Ninth Circuit also held that the emails received from the perpetrator “did not trigger coverage because [the insured was] not a financial institution.” Id. [4] No. 1:15-cv-2671-WSD (N.D. Ga. Mar. 16, 2017). [5] Id. at *3. [6] Id. at *8. [7] Id. at *9. The post Guest Post: Matching Business Models and Processes with Cybercrime Insurance Programs appeared first on The D&O Diary. Guest Post: Matching Business Models and Processes with Cybercrime Insurance Programs syndicated from http://ift.tt/2qyreAv via Blogger Guest Post: Matching Business Models and Processes with Cybercrime Insurance Programs The Crimes Amendment (Intimate Images) Bill 2017 has passed the NSW Legislative Assembly today @NSWParlLA https://twitter.com/markspeakman/status/867643289444339712 … The Crimes Amendment (Intimate Images) Bill 2017 has passed the NSW Legislative Assembly today @NSWParlLA https://twitter.com/markspeakman/status/867643289444339712 … syndicated from http://ift.tt/2qyreAv via Blogger The Crimes Amendment (Intimate Images) Bill 2017 has passed the NSW Legislative Assembly today @NSWParlLA https://twitter.com/markspeakman/status/867643289444339712 … #CSNSW #Hiring – Community Corrections Officers. Make a positive difference to reduce the impact of crime http://bit.ly/2qybCQT http://pic.twitter.com/ZUHs5W0S7A
via Blogger #CSNSW #Hiring – Community Corrections Officers. Make a positive difference to reduce the impact of crime http://bit.ly/2qybCQT pic.twitter.com/ZUHs5W0S7A |
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