In a published opinion, the New Jersey Appellate Division concluded that an insurance policy exclusion for "hostile/warlike action" did not include a cyberattack on a nonmilitary company, regardless of whether that attack was from a private actor or a government or sovereign power. The case is Merck & Co. v. Ace Am. Ins. Co., 2023 N.J. Super. LEXIS 43 (N.J. Super. Ct. App. Div. 2023).

According to the opinion, a malware/cyberattack known as NotPetya infected Merck's computer and network systems in 2017, which was delivered through an accounting software called M.E. Doc. Within 90 seconds of the initial infection, 10,000 machines were infected. Within five minutes, that number reached 20,000. The attack resulted in the infection of more than 40,000 network machines and caused massive disruptions to the company's global network in at least 64 countries.

As a result of the infection, Merck contended that its production facilities and critical applications went offline, which disrupted its operations in manufacturing, research, development, and sales, according to the opinion.