The 2Cs, COVID-19 and cyber risks, 2 plagues of our generation, both of which command global interest and competes in both print and online media for daily headlines. They also have one thing in common, they are highly misunderstood and mutates ever so often. For these and other reasons, governments and business stakeholders have invested heavily in developing safety guidelines to mitigate the loss and damages arising directly or indirectly from cyber risks and COVID19. While governments have made some progress in the fight against COVID-19 through the vaccine administration, cyber risks on the other hand is mutating at such a rate where it almost impossible to keep up and the shipping and insurance industries are just as vulnerable to cyber risks as any other industry. Here we will briefly discuss phishing, often described as the most widespread and pernicious cyber-attack technique, but the discussion will be centered around the decision of the U.S. District Court for the Northern District of Texas in RealPage v National Union Fire Insurance Company of Pittsburgh and Beazley Insurance Company.
BIMCO in its guidelines on cybersecurity risks onboard ships describes phishing as encompassing the sending of emails to many potential targets asking for pieces of sensitive or confidential information. The email may also contain a malicious attachment or request that a person visits a fake website using a hyperlink included in the mail. A distinguishing feature of phishing is that attackers pretend to be a real and trusted person or company that the victim usually or have had business relations. It is reported in the Cyber Security Breaches Survey 2020, that phishing attacks are the most common attack vector used by cyber criminals and that between 2017 and 2020 there has been a rise in the number of businesses experiencing a phishing attacks from 72% to 86% whereas there has been a fall in viruses and other malware from 33% to 16%. Since phishing is such a constant threat to businesses, it is understandable why insurers see the need to cater for this risk in their cyber insurance policies and or other commercial crime policies.
Facts of RealPage case:
RealPage provides several services for their clients who are property owners and managers of real estate. The clients entered contracts with RealPage authorizing it to act as agents on their behalf, and to manage and collect monies debited from their customers’ accounts, and to credit the client’s identified bank account. The tenants authorized the transactions processed by RealPage and this was communicated to RealPage by their clients. RealPage then contracted with Stripe to provide software services that enable payment processing and related functions.
The payment process involved the following:
- A tenant would log in to an interface called “Resident Passport” to make a payment to one of RealPage’s clients.
- Upon initiation of a payment by a tenant, RealPage would send application programming interface (API) calls to Stripe’s server either through Stripe Dashboard or the On-Site application.
- Upon receipt of an API call, for an automated clearing house (ACH) transaction, Stripe would send instructions to its bank, Wells Fargo to process the ACH transfer that would pull money from the tenant’s bank account and place these funds in Stripe’s Wells Fargo bank account.
- Thereafter, Stripe would direct Wells Fargo to complete another ACH transfer to pay these funds to the clients in accordance with RealPage’s instructions.
The funds held in Stripe’s accounts were for the benefit of its users and merchants such as RealPage. If there was a balance owed to a client of RealPage, the funds for that client in Stripes account would be for the benefit of the said client. RealPage had no rights to the funds held in Stripes account. RealPage was not entitled to draw funds and did not receive interest from funds maintained in the account. RealPage contracts describes the relationship with Stripes as independent contractors. One exception where Stripe operates as an agent is holding funds that are owed to RealPage
The hackers used targeted phishing to obtain and alter the account credential of a RealPage employee. They then used those credentials to access the Stripe Dashboard and alter RealPage’s fund disbursement instructions to Stripe. The hackers diverted over $10 million that was not yet disbursed to clients. RealPage discovered the fraud, contacted Stripe and directed them to reverse the payments and freeze outgoing payments. RealPage was unable to recover over $6 million of the funds. RealPage refunded clients for lost funds.
Insurance Policies with National Union and Beazley
At the time of the attack, RealPage had a commercial crime policy with National Union and an Excess Fidelity and Crime Policy from Beazley. The Excess Policy provides a $5,000,000 limit of liability “for any loss which triggers coverage under the Commercial Crime Policy. Therefore, any recovery under the Excess policy was dependent on RealPage successfully making a claim under the Commercial Crime Policy. The following provisions of the Commercial Crime Policy are the most relevant
Ownership of Property; Interests Covered:
The property covered under this policy is limited to property:
(1) That you own or lease; or
(2) That you hold for others whether or not you are legally liable for the
loss of such property.
We will pay for loss of or damage to “money”, “securities” and “other property” resulting directly from the use of any computer to fraudulently cause a transfer of that property from inside the “premises” or “banking premises”:
a. To a person (other than a “messenger”) outside those “premises”; or
b. To a place outside those “premises”.
Funds Transfer Fraud:
We will pay for loss of “funds” resulting directly from a “fraudulent instruction” directing a financial institution to transfer, pay or deliver “funds” from your “transfer account”.
Insurance Claims and Responses
RealPage claim for the funds lost under the policy but National Union was only willing to reimburse the transactional fees owed to Real Page. With respect to the diverted funds that were owed to RealPage clients, National Union concluded that based on their preliminary analysis, RealPage did not own or hold the funds and thus was not entitled to coverage. As a result of National Union’s denial of coverage, RealPage filed a claim seeking a declaration of judgment for the funds fraudulently diverted and lost as a result of the phishing attack.
The main issue for the court was ‘whether RealPage is entitled to coverage under commercial crime insurance policies for the loss of its clients’ funds which were diverted through a phishing scheme’? In answering this question, the central issue is whether RealPage held these funds despite its use of a third-party processor, Stripe Inc? After an extensive discussion of the meaning given to the word ‘hold’, it was accepted that there must be possession and not necessarily ownership of an item. Accordingly, the court held that RealPage did not suffer a direct loss as required under the policy as they did not hold the funds at the time of the phishing attack and in so doing the court decided in National Union and Beazley’s favour granting them summary judgment.
RealPage argued that the policy was expansive enough to cover property they held. They also reasoned that since they had the authority to direct Stripe as to where the funds should go, they ‘held’ the funds. The court rejected this line of reasoning by stating ‘hold’ cannot be reduced to simply the ability to direct but required some sort of possession of property. By applying the ordinary meaning of ‘hold’, Real page was not in possession of the funds. The funds were in Stripes account at Well Fargo and not RealPage up to the time it was diverted to the hackers account. RealPage ability to direct the transfer of the funds does not amount to holding the funds. Furthermore, RealPage had no rights to the funds in the account, could not withdraw the funds and held in the same account as those of other Stripe users.
RealPage had to also establish that they had suffered loss resulting directly from computer fraud or funds transfer fraud. Since RealPage did not hold the funds, its loss resulted from its decision to reimburse its clients. Accordingly, RealPage did not suffer a direct loss as required under the Policy.
While we acknowledge that this decision is not binding on the courts in the UK, it cannot be denied that many of the practices within the UK cyber insurance market are influenced by what happens in the more mature US market. Furthermore, many of the insurance companies including Beazley who are leading the way in the UK as cyber insurance providers also have parent companies, branch offices or subsidiaries operating in the USA. So, while the decision is not binding, it will certainly be persuasive or at the very least leave an indelible lesson for both assureds and insurers to seek clarity and modify policy clauses relating to loss or damage from phishing or other social engineering attacks.
If a higher court was to approve this judgement and a similar practice is adopted in the UK by insurers, it will be very difficult for assureds who use third party providers to assist them with payment transfers and other transactions to successfully claim an indemnity from their insurers relying on similar policy wording. This would mean even though the assured’s system was breached when the employee inadvertently shared their confidential account details and though the phishing diverted funds belonging to clients of the assured, a policy bearing similar clauses as those provided above, would not respond since the outcome of the claim would be totally dependent on the definition of ‘hold’ and what was considered to be in the possession of the assured as per the requirement of the policy at the time the funds were fraudulently diverted.
To prevent such a harsh outcome for assureds, it is recommended that assures negotiate with their brokers for their cyber insurance policies or commercial crime policies to include words which would cover situations where funds are being held in the account of an agent or third-party contractor. In so doing, the policy wording could be modified to include not just funds the assured ‘hold or owns’ but to also cover ‘loss of funds for which they have authority to direct’.
Variations in policy wording – UK
- Cyber Crime
- We will indemnify you in respect of the following for loss by theft committed on or after the Retroactive Date stated in the schedule which is first discovered during the period of insurance and notified to us in accordance with Claims conditions applicable to Section B:
i) assets due to any fraudulent or dishonest misuse or manipulation by a third party of the computer system operated by you
ii) your funds or those for which you are responsible at law from an account maintained by you at a financial institution following fraudulent electronic, telegraphic, cable, telephone or email instructions todebit such account and to transfer, pay or deliver funds from such account and which instructions purportto have come from you but which are fraudulently altered, transmitted or issued by a third party or are
- In the event that any party other than an insured person enters into an agreement with a third party entity pretending to be you we will pay reasonable fees and costs to establish that such fraud has occurred should the third party seek to enforce such agreements against you provided that such loss is first discovered and is notified to us during the period of insurance.
The words provided in clause 1a (ii) will cause a different outcome when compared to how property was defined and what was decided by the court in RealPage. In RealPage the National Union insurance policy defined ‘property’ as that i) owned or leased by the assured or ii) that you hold for others whether or not you are legally liable for the loss of such property’. Whereas, under Section B- Crime, clause 1a (ii) of Zurich Cyber Policy, the assured will be indemnified for ‘your funds or those for which you are responsible at law from account maintained by you at a financial institution following fraudulent electronic … or email instructions to debit such account and to transfer…’. The difference with the Zurich policy is that unlike the National Union policy in RealPage, there is no requirement for the assured to ‘hold’ the funds in the literal sense of the word. Furthermore, under the Zurich policy the insurer will only indemnify the assured if funds are either his or those for which he is responsible at law. This is different in RealPage as the National Union policy will cover property that the assured hold for others whether or not he is legally liable for the loss. Another distinguishing feature between the two policies is that in the Zurich policy the insurer will cover funds from an account maintained by the assured at a financial institution.
This latter feature has similar meaning to ‘hold’ as interpreted by the court in RealPage. If we consider for example, maintenance of a bank account, this includes holding and transferring funds within the account and the execution of other control mechanisms to ensure that the account remains active and in good financial standing. However, others may argue that ‘an account maintained by the assured at a financial institution’ should be given a wider meaning in that even accounts owned or held by a third party at a financial institution may be maintained by the assured. In other words, maintenance of an account does not necessarily mean that the funds must be held or are being held by the assured as was decided in RealPage. If this interpretation should be applied to the facts in RealPage, it is reasonable to conclude that the insurers would have been held liable to indemnify the assured since the monies in the account held by Stripe Inc was the legal responsibility of RealPage. Moreover, if the account was used solely to hold funds related to RealPage business there should be no logical explanation as to why it cannot be accepted that RealPage is maintaining the account in accordance with Zurich policy wording. Either way, the ambiguity and possibility of a trial will be removed if the parties clearly defined and explained what it meant by ‘maintenance of account’.
For those businesses without a cyber insurance policy, coverage may be acquired under their commercial crime policy. Below is an example of a clause covering this type of loss that can be found in most crime policies:
Computer Fraud and Funds Transfer Fraud
The Insurer shall indemnify the Insured for:
1. loss of or damage to Money, Securities or Property resulting directly from
Computer Fraud committed solely by a Third Party; or
2. loss of Money or Securities contained in a Transfer Account at a Financial Institution resulting directly from Funds Transfer Fraud committed solely by a
“Funds Transfer Fraud” means fraudulent written, electronic, telegraphic, cable, teletype
or telephone instructions by a Third Party issued to a Financial Institution directing such
institution to transfer, pay or deliver Money or Securities from any account maintained by
an Insured at such institution, without the Insured’s knowledge or consent.
Some crime policies in their definition section provide that a “Transfer Account” means an account maintained by the Insured at a Financial Institution from which the Insured can initiate the transfer, payment or delivery of Money or Securities.” Like the Zurich policy, the implications of the clause will turn on the meaning assigned to ‘maintenance of an account’ as discussed above.
Funds transfer fraud is also covered in Beazley Commercial Crime Insurance Module:
Fund transfer fraud means the transfer of money, securities or other property due to electronic data, computer programs or electronic or telephonic transfer communications within a computer system operated by the insured having been dishonestly, fraudulently, maliciously or criminally modified, replicated, corrupted, altered, deleted, input, created, or prepared.
Fund transfer fraud does not include loss due to social engineering fraud.
Based on this definition and the exclusion of social engineering from Fund transfer fraud, an assured in RealPage’s position could not rely on the Funds transfer clause under their commercial crime policy. Instead, the assured would need to rely on the social engineering fraud clause (where not excluded), variations of which are found in most cyber insurance policies.
Social Engineering Fraud means the insured having authorised, directed or acknowledged the transfer, payment, delivery or receipt of funds or property based on:
- an electronic or telephonic transfer communication which dishonestly, fraudulently, maliciously or criminally purports to be, but is not, from a customer of the insured, another office or department of the insured, a financial organisation or vendor; or
- a written or printed payment instruction obtained by fraudulent impersonation.
In some policies for example Zurich Cyber Policy, an obligation is placed on the assured to confirm the validity of the transfer instructions before actions are taken to send the funds to the account mentioned in the purported instructions. The confirmation must include ‘either verification of the authenticity or accuracy of the transfer instruction by means of a call back to a predetermined number or the use of some other verification procedure and the assured must keep a written record of the verifications along with all elements of the fraudulent transfer instruction’. It is imperative for assureds to check their cyber insurance and or commercial crime policies to ensure they have adequate protection against phishing and other types of social engineering attacks as cyber criminals will continue to use these attack vectors to steal from companies.
 Civil Action No. 3:19-cv-1350-b (ND Tex Feb 24, 2021)
 Department for Digital, Culture, Media & Sport, ‘Cybersecurity breaches survey 2020’ (March 2020) <https://www.gov.uk/government/statistics/cyber-security-breaches-survey-2020/cyber-security-breaches-survey-2020 > accessed 31 March 2021.
 The API calls sent from RealPage to Stripe provided information about the tenant’s account, the client’s destination account and the amount due to the client.
 Zurich Insurance plc, ‘Cyber Policy: Section B – Crime’ (2020) 29 < https://www.zurich.co.uk/business/business-insurance/specialty-lines/financial-lines/cyber > accessed 8 April 2021.
 Beazley Inc, ‘Crime Insurance Policy: Insuring Clause 1F’ (BICCR00020411)<https://www.beazley.com/documents/Management%20Liability/Crime/Crime%20Policy.pdf> accessed 9 April 2021.
 Beazley Inc, ‘Crime Insurance Policy: Clause II Definition EE’ (BICCR00020411)<https://www.beazley.com/documents/Management%20Liability/Crime/Crime%20Policy.pdf> accessed 9 April 2021.
 Beazley Inc, ‘Crime Insurance Policy: Clause II Definition P’ (BICCR00020411)<https://www.beazley.com/documents/Management%20Liability/Crime/Crime%20Policy.pdf> accessed 9 April 2021.
 Beazley Inc, ‘Commercial Crime Insurance Module (Lloyds Syndicate) Clause F: Definitions’
<https://www.beazley.com/documents/Wordings/Commercial%20Crime%20Module%20%28Lloyd%27s%20syndicate%29.pdf > accessed 9 April 2021.
 Zurich Insurance plc, ‘Cyber Policy: Conditons application to Section B – 7 Social Engineering Cover’ (2020) 31
< https://www.zurich.co.uk/business/business-insurance/specialty-lines/financial-lines/cyber > accessed 8 April 2021.