Scott N. Godes

Insurance Coverage

• Served as lead insurance coverage counsel to a business process automation company that suffered ransomware and cyberextortion. After the first two layers of insurance paid out their limits, the carriers in the next excess layer refused to recognize any of the mid-eight figure business interruption losses and extra expenses, and even asserted that the lower layers improperly had exhausted their limits. The excess carriers also argued about the merits of third party claims and whether the carriers were obligated to indemnify settlements. Scott filed suit against those excess carriers, and reached settlements thereafter. 
• Served as lead insurance coverage counsel to a health system. The policyholder faced multiple litigations, including one with a mid-eight figure damages demand. Using highly experienced and sophisticated counsel, the policyholder defended the claims successfully. When asked to pay the defense fees, the insurance carrier relied on a litany of arguments in an effort to avoid paying the vast majority of the fees. Scott crafted a strategy in response, and convinced the carrier to pay its full policy limit without the need to resort to litigation. 
• Served as lead insurance coverage counsel to an IT solutions integrator in connection with a ransomware attack. In a novel situation where the threat actor attacked the policyholder’s business partner, but thought that it had attacked the policyholder and asserted that the policyholder had to pay the ransom. The insurance carrier originally refused to pay or contribute to paying the ransom. After Scott analyzed the coverage and crafted a strategy for recovery, the cyberinsurance carrier changed its position and covered. The cyberinsurance carrier also agreed to cover first party losses and third party settlements.
• Served as lead insurance counsel to a technology company.  In this matter, the client was seeking coverage for a proposed settlement of a putative class action. The underlying matter arose out of a cyberattack stemming from an issue with a third party application services provider. In the underlying matter, the client faced a court-ordered mediation with a short fuse. The insurance carrier refused to provide settlement authority in advance of the mediation, and the client did not have the ability to fund a settlement without insurance coverage. Scott provided strategic advice to the client that resulted in the insurer quickly agreeing to cover a tentative settlement that had been reached at mediation.
• Served as lead counsel for an insured in a long-running insurance coverage dispute regarding litigation over a series of failed development projects.  The insurance carrier had denied coverage, and stood on its denial for years.  After multiple mediations, the client settled the underlying litigation, and Scott convinced the carrier to settle the coverage dispute.
• Served as lead counsel for an insured in an insurance dispute regarding coverage for a series of alleged abuse claims.  The insurance carrier denied coverage on late notice grounds in connection with a claims-made errors and omissions insurance policy.  Scott analyzed the coverage and determined that the defense should fail and that there also was CGL coverage that should apply.  After an exchange of letters on the issue, the insurance carrier agreed that there was coverage for the matter, and covered the settlement of the underlying claims.
• Served as lead counsel in connection with a client’s COVID-19 business interruption insurance coverage claim. The team presented the claim to the tower of insurance carriers and obtained a quick resolution with one carrier within the insurance tower.  After filing suit against additional insurance carriers, the team reached a favorable resolution after a multi-party mediation.
• Served as counsel to a food manufacturer, providing advice and counsel in connection with a nearly nine-figure million loss after a catastrophic fire at its factory.  Scott helped the company recover full limits from its primary insurance carrier.  After the excess carriers were slow to pay, the team filed suit, alleging breach of contract and bad faith claim handling against the excess carriers.  The insured reached settlements with all of the excess carriers soon after filing suit.
• Served as lead insurance coverage counsel for a retail chain and convinced insurance carriers from Lloyds of London to provide full coverage to the retailer for a multi-million-dollar settlement of a putative court class action.  The lawsuit alleged that the retailer used misleading sale prices, running afoul of a consumer protection statute.  Before Scott was involved, the insurance carriers refused to fund a class-wide settlement and suggested that a settlement be made on a basis that they saw as excluded from coverage.  Scott served as coverage counsel at multiple mediations of the underlying suit.  At the end, the carriers agreed to cover a proposed class-wide settlement in full.
• Served as insurance coverage counsel to a client that obtained full insurance coverage for a ransomware attack.  Prior to Scott’s engagement, the insured paid a ransom to resolve a ransomware attack, with the permission of its cyberinsurance carrier.  Rather than pay right away, the cyberinsurance carrier delayed for months.  The carrier cited internet chatter suggesting that the threat actor was affiliated with a sanctioned entity, and denied coverage.  After being hired, Scott created a strategy to get information from the government to confirm that coverage was permissible.  Other Barnes & Thornburg attorneys worked with the Office of Foreign Asset Control to obtain a “no-action letter” as to the ransomware payment, getting the government to act before the client’s internal financial reporting deadline.  The client took the new information to its carrier, and the carrier quickly agreed to pay the full claim.
• Scott is and has been the lead insurance coverage counsel for numerous clients facing claims of alleged infringements of copyrights of music played via clients’ social media accounts, in client’s products, and during clients’ events. He has helped clients obtain coverage for numerous alleged copyright infringement claims for clients with household names, including coverage for settlements with multiple music and copyright holding companies. Scott currently is insurance coverage counsel for multiple professional teams across multiple leagues in connection with these matters.
• Represented United Policyholders as an amicus curiae in this insurance coverage litigation as to whether a crime insurance policy provided coverage for a ransom paid to end a ransomware attack. The Indiana Supreme Court accepted the discretionary appeal and ruled that crime insurance can cover payments made to resolve a ransomware attack. G&G Oil Co. of Ind. v. Cont’l Western Ins. Co, 165 N.E.3d 82 (Ind. 2021).
• Represented an investment company in this insurance coverage litigation as to whether a crime insurance policy covered a multi-million dollar loss as a result of alleged employee thefts of millions and a forgery resulting in a merger of the owned company. The court denied the insurance carrier’s motion to dismiss and ruled that the insurance policy language was ambiguous. The court later granted a motion to compel regarding claim investigation and handling documents written by a law firm. 
  Served as insurance recovery counsel for a widely-reported health care data breach. After a cyberinsurance excess carrier denied coverage, helped convince D&O and E&O carriers to defend and settle the putative class action and regulatory investigation matter; helped the insured recover under an all risks property policy for its covered losses
• Served as insurance recovery counsel for financial institution. This client suffered two different cybersecurity events. One was a spoofing event that led to the criminals being able to withdraw sums of money from the account of a customer of the institution.  The second involved a hack and a complicated fraudulent transfer and theft of funds. The insurance carrier took extensive time to purport to investigate the claims through outside counsel, then denied coverage, and dropped the institution as an insured. Scott convinced the insurance carrier to mediate without filing litigation, and reached a confidential settlement for coverage of both matters.
• Served as an insurance coverage counsel in connection with coverage for cyberattack that impacted franchisor and franchisees, and multiple millions in liabilities to the payment card networks. After cyberinsurance carriers pushed back on covering the proposed settlements, Scott negotiated with carriers for the franchisor and franchisees to reach confidential settlements.
• In this insurance coverage litigation regarding coverage for a construction accident, the court issued rulings that there was a duty to defend and indemnify the additional insured under a primary CGL policy and an umbrella policy.  
• Served as insurance recovery counsel for a real estate title company, where the E&O insurance carrier denied coverage for a seven figure alleged loss after an allegedly fraudulent alteration of closing documents. After engagement, the E&O insurer agreed to defend the third party claim and to provide coverage for the settlement.
• Represented the insured in connection with coverage for a business email compromise and wire fraud.  This case resulted in multiple federal court rulings that a crime insurance policy provided coverage for losses resulting from a business email compromise and wire fraud. The published decision from the 11th Circuit is one of the earliest federal Court of Appeals rulings on funds transfer fraud coverage under a crime insurance policy, and the decision has been cited by multiple courts in favor of insurance coverage for losses due to business email compromises. 
• Represented a pharmacy benefit manager on insurance coverage issues. One of the liability insurance carriers denied coverage for litigation related to the insured’s businesses. After the denial, filed a lawsuit within days, and quickly reached an interim resolution with the insurance carrier. 
• Argued an appeal at the U.S. Court of Appeals for the Eleventh Circuit in this dispute regarding insurance coverage for liabilities due to a cyberattack, where the CGL insurance carrier denied coverage and then filed suit against the insured. Shortly after oral argument at the Court of Appeals, the parties reached a confidential settlement. 
• Won ruling that electronic data is tangible property for purposes of a crime insurance policy, a hotly contested insurance coverage issue around the country. The court ruled that the losses, which arose out of a hacker deleting company data and the theft of confidential business data, were covered as a matter of law, and that electronic data is tangible property under the crime insurance policy.  (Decision was later vacated due to settlement.) 
• Sued cyberinsurance carrier that refused to provide full coverage for losses resulting from a credit card cyberattack and the insured’s liabilities to payment card brands for alleged fraudulent charges and card replacement costs. The case settled, confidentially, not long after the complaint was filed.
• Served as lead insurance recovery counsel for an international retail chain, where the retailer suffered a data security incident that affected point-of-sale systems at multiple stores, and allegedly impacted millions of payment cards. The cyberinsurance carrier was not willing to provide full coverage for the liabilities to the payment card networks and brands, but achieved a confidential settlement of all coverage disagreements with the cyberinsurance carrier.
• Achieved confidential settlement of insurance coverage litigation disputing whether a property insurance policy provides coverage for losses resulting from mine subsidence. 
• Served as insurance coverage co-counsel for a European packaging company, where the insured suffered a ransomware attack that resulted in significant business interruption and extra expense, obtaining significant recoveries from tower of cyberinsurance carriers.
• Served as insurance coverage counsel for a professional services firm, where the insured was involved with a business email compromise that allegedly resulted in eight figures of losses and obtaining full coverage for settlement of matter from cyberinsurance and professional liability insurance carriers.

Government Contracts and Federal Procurement Law

• Multiple experiences representing disappointed bidders and intervenors in bid protests before the GAO and Court of Federal Claims.

International Trade Commission § 337 Investigation

• Successfully represented respondent in ITC § 337 Investigation. Scott was the lead attorney on the domestic industry issues.  He prepared witnesses for deposition and trial, and examined and cross-examined multiple fact and expert witnesses on the domestic industry issue during a live, in-person trial.