We’ve covered confidential source exposures on our blog in the past, but a recent case brings a particularly difficult aspect of confidential source protection to light. The case involves a USA Today reporter and her 2003 story regarding the letters poisoned with anthrax that were sent after 9/11 and resulted in 5 deaths. A federal judge has ordered the reporter to reveal her sources for that story to aid in a case against the government. The case was brought by one of the individuals named as a potential suspect in the anthrax letters investigation. The plaintiff was never charged with a crime but feels his privacy has been violated by the Justice Department’s and FBI’s disclosure of confidential info about him to reporters.

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Here are a few loss scenarios arising from recent events.  Topics include Denial of Service/ECommerce, Defamation and Website Accessibility.

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You had better think twice before you send a copy of the great article you just read to your entire staff; you could end up entangled in copyright infringement litigation. A California-based market research company recently settled complaints brought against it by the Software & Information Industry Association (SIIA). The company had been internally distributing a variety of third-party owned content including market research reports, news articles and other information. Many companies engage in the same practice and as a result, it doesn’t occur to most people to obtain permission or a license to use the content unless it is going to be used externally. Even if the disseminator of the content knew that technically they should obtain permission prior to use, it’s only being distributed internally, so who’s going to know? That position works fairly well, until one of your employees blows the whistle, which is exactly what happened in this case.

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Contingent Bodily Injury/Property (BI/PD) coverage is usually helpful to media or internet risks featuring how-to or instructional content. Game software developers are also good candidates (if you can get an underwriter to offer it) for BI/PD given the studies showing how violent video games can create violent moods in its users. And the producers of Fear Factor may have had BI/PD coverage to help protect them from the annoyance of a viewer’s lawsuit alleging that a particular rat-eating scene so disturbed him that he had to vomit and ran into a door. But here’s a new BI/PD scenario to consider: The London 2012 Olympics Committee recently had to pull its jazzy new video featuring the Olympics logo over concerns that the imagery (multicolored rippling effects on the logo) could cause epileptic seizures in viewers. These examples not only underscore the need for Contingent BI/PD, but may also illustrate that this type of coverage is worth purchasing even when your client does not have an obvious exposure to it.

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The professional liability exposure of many industries has changed significantly in the past decade or so, and it’s about time the insurance industry catches up.

Many, probably most, companies now have at least some internet/technology risk in association with their business; for some companies it is a substantial exposure. Even companies that aren’t transacting business online, and collecting names and credit card numbers of customers that may be subject to a data breach, can have multiple exposures posed by the internet and their use of technology in the course providing business services to others.

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The majority of professional liability insurance policies tend to include the following phrase after the Policy Period end date is listed on the Declarations Page:

12:01 a.m. standard time at the address of the Named Insured.

Now sometimes the Dec page might indicate “local” time instead of standard time but there is an amazing consistency in choosing 12:01 a.m. as the end time. If your client’s policy expires on January 1 at 12:01 a.m., the policy does indeed expire well before daybreak on January 1, not at the end of the business day. While in the absence of a claim or incident, there may be some level of goodwill and flexibility on the underwriter’s part to extend the policy a skosh, perhaps to the end of the business day, the extension is by no means mandatory and should not be assumed.

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Eric Goldman , assistant professor at Santa Clara University School of Law and a frequent blogger, sums up recent changes to trademark dilution laws in the U.S. by saying the bottom line is that the amendments are unfavorable for defendants in trademark dilution cases.

He believes defendants would benefit from a change requiring that the mark in a dilution case must be widely recognized in the United States, making the cause of action unavailable for marks known only within a smaller community. But that benefit is more than offset by a change permitting a plaintiff to only show a likelihood of dilution rather than having to show actual dilution.

Read our previous post for a discussion of the differences between dilution and infringement