A recent Law 360 story by Joanne Faulkner, “Insurers Deny Liability in Experian’s $18M Legal Fees Suit,” reports that two insurers have told a London judge they are entitled to refuse to pay Experian's $18 million claim for coverage of its U.S. legal fees in a pair of class actions over errant credit reporting because the litigation stems from deliberate data erasure by staff at the company. Zurich Insurance PLC and a subsidiary of SCOR said Experian's policy excludes "deliberate acts" such as those that allegedly form the basis of two major class action suits in the U.S., a newly public Nov. 13 defense said, after the company sued to claw back litigation fees.
The claims made against Experian — which said it has racked up millions of dollars in liabilities and legal costs defending the suits — were for statutory damages according to the U.S. Fair Credit Reporting Act. If Experian is liable, it is the result of a "wilful (or reckless) failure on the part of an employee or employees … to comply with the FCRA," the defense said.
Experian says in its October High Court suit that it paid a class of more than 100,000 payday loan customers $24 million to settle a lawsuit in January brought by lead plaintiff Demeta Reyes. A $5 million deal was reached with consumers in the so-called Smith action. The customers said they were harmed by inaccurate reporting of their credit history. The insurers said that Experian's alleged liability in the Reyes action arises out of the deleting of loan records — particularly those held by an entity called Delbert Services Corp. In the Smith action, it is connected to the re-reporting of records relating to loans held by CashCall Inc. Experian directors were involved in the decision-making in both incidents, the insurers said.
From April 2015 through April 2016, Experian held a complex multitiered insurance "tower" consisting of a primary policy from XL Specialty Insurance Co. and several layers of excess coverage, Experian says. Zurich and SCOR unit General Security Indemnity Co. of Arizona are each liable for half of a $20 million excess policy, which kicked in once the underlying coverage was depleted, Experian says. So far the insurers have only paid out a slice of the $20 million excess that Experian says it is entitled to, the company alleges.
Experian is also seeking a declaration from the court that the insurers will cover financial penalties that Experian may have to pay as a result of investigations into a 2015 cyberattack. The two insurers said that coverage is provided for regulatory fines and penalties, but Experian must prove that any sanction is "lawfully insurable."
Experian says it has run up costs of more than $32 million defending two major related class suits. Thousands of consumers successfully argued that Experian's failure to delete certain negative information in their consumer credit reports caused them harm.
Experian says it should be able to recover $18 million in legal costs from the insurers under its third-party liability and first-party insurance policies. The suit also name-checks an action brought by Carolyn Clark alleging the company violated the FCRA, which ended up costing Experian more than $21 million. The company says it could be entitled to an indemnity of $14.3 million from the insurers to cover the costs from that case.