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On the first day of trial in the case of Mondelez International Inc. v. Zurich American Insurance Co., case number 2018-L-011088, in the Circuit Court of Cook County, Illinois, a jury heard testimony on Thursday, citing a little-known “war-related” policy exclusion which Zurich used as a basis to reject the claim of snack giant Mondelez after it was hit by a malware attack in 2017 that impacted thousands of its servers and computers.

In his opening statements, counsel for Mondelez International Inc. told the jury that Zurich’s insurance policy exclusion for "hostile and warlike action" was improperly invoked to avoid paying more than $100 million in damages caused by the "NotPetya" cyberattack in June 2017, which affected its servers and computers in the U.S., and many in Ukraine.

Counsel for Mondelez also told the jury that Zurich previously offered to pay $10 million dollars as an advance toward adjusting the Mondelez claim, but later reneged and reasserted its rejection, and the $10 million dollar payment was never made.

Mondelez's attorney, David Kroeger of Jenner & Block LLP, told the jury that Zurich asserted the exclusion clause because it believes Russia was to blame for the cyberattack, and attorney Kroeger was quick to point out Zurich has never produced any credible evidence to support their theories, telling jurors, there are "accusations, maybe, but accusations are not evidence," he said.

Counsel for Mondelez doubled down on Zurich’s "hostile and warlike action" exclusion in the policy, stating "We are talking about computer malware that was released five years ago, not ... what is going on in Ukraine now … missiles, tanks, bombs, and death," Kroeger told the jury. "What is happening in Ukraine now is hostile or warlike action, and it stands in stark contrast to the NotPetya malware."

Zurich’s attorney, Philip Silverberg of Mound Cotton Wollan & Greengrass LLP, told the jury that Mondelez was simply "in the wrong place at the wrong time," calling the cyberattack on Mondelez "collateral damage" in Russia’s broader effort to attack the Ukrainian economy.

Holding fast to their assertions, Silverberg told the jury that it will be "pretty easy" to tell from evidence at trial that Russia's military was behind the attack, even though the country doesn't typically raise its hand to take credit for that kind of action.”

Silverberg claimed that "The evidence will show that Mondelez was not specifically targeted because someone hated Oreo cookies … or Trident gum." He said, "Mondelez just happened to be one of the many companies paying taxes to [Ukraine], and that's why it was damaged."