Data Breaches: A Growing Risk for D&O Losses

Data Breaches

Directors and officers (D&O) losses stemming from data breaches should be a top-of-mind concern for an organization’s C-suite and board. Although proving harm in these cases can be difficult, defense costs are expensive, and not all allegations are unsuccessful. Advisen data gives a glimpse into the types of allegations frequently made against directors and officers following a data breach and the most common industries to face these losses.

D&O Losses Stemming From Data Breaches

Following a data breach, the decisions made by an organization’s directors and officers are often intensely scrutinized. Data breach-related D&O losses can arise from allegations such as directors and officers failing to take reasonable steps to protect customers’ personal and financial information, failing to implement controls to detect and prevent a data breach, and failing to report a breach and notify people in a timely manner.

D&O losses stemming from data breaches in Advisen’s loss database are primarily classified as shareholder risks or corporate capital risks. These losses encompass a wide range of loss types, including merger objections, securities class actions, derivative shareholder actions and capital regulatory actions. It’s important to note that Advisen data categorizes these case examples as losses, regardless of trial outcomes. Therefore, not all losses shown above were won by the plaintiff or resulted in significant financial compensation.

Data Breach-related D&O Allegations

Allegations against directors and officers are often dismissed, indicating that plaintiffs have trouble showing actual compensatory injuries and proving corporate mismanagement was the direct cause of harm from a data breach. Nevertheless, defense costs are expensive.

However, not all allegations are unsuccessful. For example, the D&O lawsuits following data breaches at Yahoo and Equifax settled for $80 million and $149 million, respectively.

In the Yahoo loss, settled in 2019, the plaintiff alleged the company:

  • Made false or misleading statements
  • Failed to disclose material adverse facts about the company’s business—specifically that Yahoo failed to encrypt users’ personal information or data, leaving more than 1 billion users vulnerable to theft
  • Made public statements that were materially false and misleading at relevant times

According to Advisen’s loss database, Equifax’s 2020 settlement followed allegations that it made false and misleading statements, failed to disclose that the company did not maintain adequate measures to protect its data system, maintained inadequate monitoring systems to detect security breaches, and failed to maintain proper security systems and controls.

Equifax accounted for multiple D&O losses in Advisen’s database, including capital regulatory actions, securities class actions and derivative shareholder actions.

D&O Losses From Data Breaches by Industry

Since 2010, the information sector has accounted for the most significant percentage of data breach-related D&O losses at 42%. The information sector encompasses many software publishers, computer programmers, telecommunication organizations and research-based companies.

For example, Facebook agreed to a $100 million settlement with the Securities and Exchange Commission after the social media company was accused of permitting a third-party developer known as Cambridge Analytica to misuse user data. Facebook’s directors and officers were accused of issuing false or misleading statements by declaring they had found no evidence of wrongdoing, even though they had discovered the misuse of data as far back as 2015, according to Advisen loss data.

Finance and insurance accounted for the second greatest frequency of D&O losses stemming from data breaches at 16%, followed by admin, support, and waste management and remediation services at 15%, according to Advisen data.

*Advisen’s loss data is curated from a wide variety of public sources. Our collection efforts focus on larger and more significant cases. For this reason, the figures in this article may not be fully representative of all cases of this type.

**This article is originally from Zywave. (2021 Zywave, Inc. )

** Additional Resources: AmWINS Cyber Liability: The D&O Dilemma

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Rob Wagner

Executive Vice President | Director of Sales, Southeast Region

With over 15 years of insurance industry experience, Rob focuses on growing organic growth throughout the entire Southeast region for both Acentria Insurance and Foundation Risk Partners. Working alongside both executive leadership and territory sales leaders, Rob is instrumental in producer training, increasing retention and expanding our organizational footprint.

As a self-proclaimed Army Brat, he was born in Fort Benning, GA, but has moved 27 times and resided in 40 different houses… all before college! His father proudly served our country for 28 years! As a graduate of Florida State University with a degree in Business Management, Rob also holds an MBA from Stetson University. A producer at heart, he specializes in large property, senior living, management liability and workers’ compensation. He enjoys meeting new team members and finds his personal success in seeing producers succeed.

In his free time, he enjoys spending time with his wife of 22 years and their two daughters. Together they enjoy boating, offshore fishing and exercising.

Mike Freeman

Mergers & Acquisitions

Leading the Acentria Mergers & Acquisitions team, Mike works with those agency principals and leaders who are interested in furthering a potential partnership with Acentria Insurance.  With over 35 years of finance and insurance experience, Mike and his team showcase the various benefits of partnering with Acentria. He works with principals through the initial phases to evaluate agency operations, books of business as well as planning and implementing fully comprehensive migration and implementation plans. He served 25 years in the banking industry in various executive-level positions transitioning to insurance in 2011 as Chief Financial Officer for Acentria Insurance. In 2017, Acentria Insurance partnered with Foundation Risk Partners where his major focus became leading Acentria Insurance’s mergers and acquisitions team.  

Mike is a graduate of Auburn University. He is dedicated to serving his community having held numerous leadership positions including Chairman for the American Heart Association; Chairman Mental Health Association; Chairman Destin Chamber of Commerce and Board Member for United Way Okaloosa-Walton Counties. Mike is a 27-year resident of Destin, FL and enjoys spending time with his wife of 35 years, Yvonne and their two adult children and their families.

Jenny Cirioni

Vice President, Operations
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Todd Lawrence

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Rob Wagner

Executive Vice President
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Alan Florez

Executive Vice President, National Sales

Alan leads new business growth strategies and expansion, guides the development of resources and training for Sales Producers and their partnerships with Carriers. With over 15 years of industry experience, Alan also leads the Acentria Public Risk divisions working with municipalities and government entities for their coverage needs. He was appointed to the Halifax Health Board of Commissioners December 2020 and also serves as an Executive Committee member for our parent company, Foundation Risk Partners.

Previously, Alan served as Governor Jeb Bush’s Deputy Director of Legislative Affairs and Special Assistant. He is a former member of the University of Central Florida Board of Trustees and currently volunteers his time with the Florida Council of 100, Futures Foundation of Volusia County Schools and the Community Foundation of Flagler and Volusia. Alan holds a bachelor’s degree in Political Science from the University of Central Florida.

Anne Kraus

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Teresa Fillmon

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Alex Doberstein

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Eric Austin

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Luke Wolkers

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Chris Tolland

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Brian Stanton

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Nathan Marks

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Jason Cruse

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Jackie Shaw

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Jessica Parkhurst

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Doreen Castro

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Kendall McEachern

Co-Founder

Kendall was a fundamental part of Acentria Insurance. As a co-founder, he brought more than 30 years of industry expertise to Acentria, helping transform the organization into a leading insurance provider. Beloved by team members, carrier partners and clients, he oversaw more than 400,000 insured multi-family units with property values greater than $22 billion, and over four million square feet of commercial office space and real estate buildings. Kendall has received numerous industry awards to include being recognized as a National Top Producer and Agent of the Year by both Insurance Business America and Insurance Journal. Away from the office, he served as chairman for the American Heart Association, actively participated in his church and golfing, watching sports and spending time with his family. Kendall passed away in January of 2021, leaving a lasting legacy on Acentria’s culture, success, industry-wide reputation – and on all of us fortunate to have worked alongside him.

Mary Lawless

President & Chief Operating Officer

As President and Chief Operating Officer, Mary brings over three decades of industry expertise to Acentria Insurance. With a strong focus on Mergers & Acquisitions, Mary is passionate about partnering with new agencies and leaders to continue the overall upward growth of Acentria. She works in conjunction with the CEO to lead and deliver specialized sales products, services and industry leading capabilities while implementing business and sales strategies to the Acentria sales team and carrier partners. Mary has direct oversight of all operational leaders throughout the entire organizational footprint and is responsible for operational financials and budgets.

She empowers her team members and because of it, is well respected by her peers and those she leads. Since her time with Acentria, Mary’s leadership has contributed to the agency’s exponential growth from 15 to well over 50 locations, increasing employment to over 700 team members, across the southeastern United States. Due to her leadership and contributions to the insurance industry, she has been nationally recognized as one of Insurance Business America magazine’s Elite Women and serves as a valuable member on the Executive Committee for Foundation Risk Partners, Acentria’s parent company. Prior to joining Acentria Insurance, Mary led operations for another national broker. Throughout her tenure, she has held a variety of management positions in Personal Lines, Select Business and Employee Benefits. Mary specializes in agency operations, partnerships and acquisitions and is truly passionate about developing team members to become great leaders.

When not shaping the future industry leaders at Acentria Insurance, Mary enjoys traveling and spending time with her husband, Pat and their family and friends.

Mitch Weinstein

Partner & Co-Founder

As partner of Acentria Insurance, Mitch plays an integral role in mergers & acquisitions. He focuses on seeking out strategic like-minded partners and agencies, across the southeastern United States, to partner and join the Acentria family.

Mitch has over 42 years of business leadership experience that ranges from law enforcement to the finance, healthcare and insurance industries. He was instrumental in developing the nation’s first “at-risk” managed care network for physical and occupational therapy serving the worker’s compensation industry. This network paved the way for a new managed care system, based on incentives.

Mitch is passionate about giving back to the youth of his community. He is an active supporter of the Boys & Girls Clubs of Polk County and believes in helping all young people reach their full potential. He is also the founder of Fallen First Reserve which is a non-profit organization dedicated to financially assisting those family members of First Responders killed in the line of duty and military members killed in action. Mitch also serves on the board for Fund the First.

Kevin Mason

Chief Executive Officer & Co-Founder

As Chief Executive Office of Acentria Insurance, Kevin focuses on developing insurance solutions that strengthen Acentria’s presence in the market and its commitment to client-relationships and exceptional service. With over 35 years of industry experience, he specializes in the overall growth of Acentria is passionate about bringing new talent to the organization both organically and through mergers and acquisitions. Through his leadership and the support of the Executive Leadership team, Acentria Insurance instills a positive corporate culture which has led the agency in being recognized as a leader within our industry as a Top 100 Workplace, Employer of Choice, Best Agency to Work For and several other national and regional accolades.

Before co-founding Acentria Insurance, Kevin served as Branch Manager for another national broker. Kevin holds the prestigious title as an Agent of the Year and five-time National Top Producer. He is also a key member of the Foundation Risk Partners Executive Committee, which is the parent company of Acentria Insurance, while also serving as the National Director for Carrier Relations. In addition, Kevin oversees the Sales Leadership Council, which encompasses sales leaders across the entire FRP footprint in an effort to develop and refine shared resources while offering producer training and development programs.

Kevin received a Bachelor’s Degree in Management from the University of West Florida. He is very active in his community and served over a decade on the Board of Directors of Destin Charity Wine Auction Foundation and remains as a trustee, which funds over 14 children’s charities along the Florida Panhandle. He is also a member of the Destin Chamber of Commerce, Community Association Institute and Florida Association of Insurance Agents. In his spare time, Kevin enjoys golfing, tennis, boating and spending time with his wife Laura, and their children.