Procuring Insurance Information In Fortune 500 Antitrust Lawsuits
Legal pleadings in antitrust litigation do not typically answer key questions asked by an insurance policy. Fact development and clarification of grounds for relief are essential for insurance coverage to be invoked. Our involvement in representing insurance policyholders reveals that the earlier we are involved, the greater the likelihood that we can obtain reimbursement of defense fees and other expenses, including judgments incurred in such litigation. Where the insurer has denied paying the legal fees for a defense, greater benefits may accrue while awaiting completion of the underlying action, so long as pertinent clarifying facts are regularly directed to the insurer during the pendency of the antitrust litigation.
Many courts have upheld coverage under “personal injury” and “advertising injury” provisions in commercial liability policies in a wide range of settings for antitrust claims and other nested alleged business torts. These decisions show how critical it is to investigate this insurance asset and determine if pursuit of claims thereunder is proper. The decisions include: American Contract Bridge League v. Nationwide Mutual Fire Ins. Co., 752 F.2d 71, 75 (3d Cir. (Pa.) 1985) (claim of monopoly power and antitrust violations by bridge player for suspension of playing privileges);
Bank West v. Fidelity and Deposit Co., 63 F.3d 974, 981 (10th Cir. (Kan.) 1995) (claim for interference with bank lines of credit);
Curtis Universal v. Sheboygan Emergency Services, Inc., 43 F.3d 1119 (7th Cir. (Wis.) 1994) (claim of conspiracy to exclude competing ambulance service from market entrance);
Federal Ins. Co. v. Stroh Brewing Co., 127 F.3d 563 (7th Cir. (Ind.) 1997) (discriminatory pricing practices in beer distribution);
Insurance Corp. of Ireland v. Board of Trustees, 937 F.2d 331, 333 (7th Cir. (Ill.) 1991) (claim of antitrust violations for university’s refusal to let faculty members practice in hospital);
Lime Tree Village Community Club Ass’n v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1406¬ 07 (11th Cir. (Fla.) 1993) (claims of discrimination, slander of title and unreasonable strain on trade and marketing of residential property);
Ruder & Finn, Inc. v. Seaboard Cas. Co., 52 N.Y. 2d 663, 422 (N.E. 2d 518 (1981) (claims of conspiracy to circulate anti-aerosol publicity intended to result aerosol product boycott and drive plaintiff out of business);
St. Paul Fire & Marine Ins. Co. v. Medical X-ray Center PC, 146 F.3d 593, 594 95 (8th Cir. (Minn.) 1998) (antitrust and interference claims by competing radiologists);
Tews Funeral Home v. Ohio Cas. Ins. Co., 832 F.2d 1037 (7th Cir. (Ill.) 1987) (claims for antitrust and unfair trade practices in conspiracy to maintain artificially high prices for funeral services and products);
Tire Kingdom, Inc. v. First Southern Ins. Co., 573 So. 2d 885 (Fla. 1990) (suit asserting claims of antitrust violations, Lanham Act violations, unfair trade practices, misleading advertising, disparagement and defamation of tire industry).
All of these cases implicitly recognized the potential for coverage, even though the policies do not expressly mention antitrust claims as a covered “offense.” Insureds faced with claims of antitrust violations and other business torts should consider notifying their insurance carriers and seek a defense and indemnity under their CGL policies. Any other course will not assure they obtain the protection which they for when they purchased their pertinent policies.
We believe that our unique expertise in representing insurance policyholders brought us to the attention of a number of Fortune 500 companies and led us to successful coverage results on their behalf. Antitrust insurance coverage actions have uniquely positioned us to bring our expertise to bear to litigate such insurance coverage issues.
Our pertinent strengths include:
More intellectual property/antitrust/policyholder insurance attorneys under one roof than any other law firm in the country.
A truly national practice with 70% of our cases pursued outside the State of California.
Approximately 30 active intellectual property or antitrust insurance cases pending.
Forty past and present Fortune 1000 clients including Lexmark, Apple Computer, J.C. Penney, LSI Logic, MCI, Lockheed Martin, Arrow Electronics, Oakley, and Unocal Corporation.
An internal proprietary library of over 2,000 intellectual property/antitrust insurance briefs, memoranda, pleadings, discovery tools, and other documents, many of which are not of public record and were obtained via the relationships we have built.
Recovery of over $100 million dollars on behalf of our clients from insurance companies over the past eight years.
If you wish for Gauntlett & Associates to proceed with a coverage analysis, enclose the following materials so that we can evaluate whether potential coverage arises under your client’s policy for any claims asserted against your client:
1. Commercial General Liability/Umbrella policies in effect from and after the date of the first wrongful act that your company is accused of committing under the claims asserted in the complaint filed against you;
2. The complaint and any amendments thereto in the above-entitled action;
3. Any motion for preliminary injunction and supporting documentation as well as opposition filed thereto;
4. Any advertising materials generated by your company in marketing the product that is the subject of the suit against it apart from materials available on your company’s website; and
5. Any advertising materials generated by plaintiff company in marketing the product that is the subject of the suit.
Many courts have upheld coverage under “personal injury” and “advertising injury” provisions in commercial liability policies in a wide range of settings for antitrust claims and other nested alleged business torts. These decisions show how critical it is to investigate this insurance asset and determine if pursuit of claims thereunder is proper. The decisions include: American Contract Bridge League v. Nationwide Mutual Fire Ins. Co., 752 F.2d 71, 75 (3d Cir. (Pa.) 1985) (claim of monopoly power and antitrust violations by bridge player for suspension of playing privileges);
Bank West v. Fidelity and Deposit Co., 63 F.3d 974, 981 (10th Cir. (Kan.) 1995) (claim for interference with bank lines of credit);
Curtis Universal v. Sheboygan Emergency Services, Inc., 43 F.3d 1119 (7th Cir. (Wis.) 1994) (claim of conspiracy to exclude competing ambulance service from market entrance);
Federal Ins. Co. v. Stroh Brewing Co., 127 F.3d 563 (7th Cir. (Ind.) 1997) (discriminatory pricing practices in beer distribution);
Insurance Corp. of Ireland v. Board of Trustees, 937 F.2d 331, 333 (7th Cir. (Ill.) 1991) (claim of antitrust violations for university’s refusal to let faculty members practice in hospital);
Lime Tree Village Community Club Ass’n v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1406¬ 07 (11th Cir. (Fla.) 1993) (claims of discrimination, slander of title and unreasonable strain on trade and marketing of residential property);
Ruder & Finn, Inc. v. Seaboard Cas. Co., 52 N.Y. 2d 663, 422 (N.E. 2d 518 (1981) (claims of conspiracy to circulate anti-aerosol publicity intended to result aerosol product boycott and drive plaintiff out of business);
St. Paul Fire & Marine Ins. Co. v. Medical X-ray Center PC, 146 F.3d 593, 594 95 (8th Cir. (Minn.) 1998) (antitrust and interference claims by competing radiologists);
Tews Funeral Home v. Ohio Cas. Ins. Co., 832 F.2d 1037 (7th Cir. (Ill.) 1987) (claims for antitrust and unfair trade practices in conspiracy to maintain artificially high prices for funeral services and products);
Tire Kingdom, Inc. v. First Southern Ins. Co., 573 So. 2d 885 (Fla. 1990) (suit asserting claims of antitrust violations, Lanham Act violations, unfair trade practices, misleading advertising, disparagement and defamation of tire industry).
All of these cases implicitly recognized the potential for coverage, even though the policies do not expressly mention antitrust claims as a covered “offense.” Insureds faced with claims of antitrust violations and other business torts should consider notifying their insurance carriers and seek a defense and indemnity under their CGL policies. Any other course will not assure they obtain the protection which they for when they purchased their pertinent policies.
We believe that our unique expertise in representing insurance policyholders brought us to the attention of a number of Fortune 500 companies and led us to successful coverage results on their behalf. Antitrust insurance coverage actions have uniquely positioned us to bring our expertise to bear to litigate such insurance coverage issues.
Our pertinent strengths include:
More intellectual property/antitrust/policyholder insurance attorneys under one roof than any other law firm in the country.
A truly national practice with 70% of our cases pursued outside the State of California.
Approximately 30 active intellectual property or antitrust insurance cases pending.
Forty past and present Fortune 1000 clients including Lexmark, Apple Computer, J.C. Penney, LSI Logic, MCI, Lockheed Martin, Arrow Electronics, Oakley, and Unocal Corporation.
An internal proprietary library of over 2,000 intellectual property/antitrust insurance briefs, memoranda, pleadings, discovery tools, and other documents, many of which are not of public record and were obtained via the relationships we have built.
Recovery of over $100 million dollars on behalf of our clients from insurance companies over the past eight years.
If you wish for Gauntlett & Associates to proceed with a coverage analysis, enclose the following materials so that we can evaluate whether potential coverage arises under your client’s policy for any claims asserted against your client:
1. Commercial General Liability/Umbrella policies in effect from and after the date of the first wrongful act that your company is accused of committing under the claims asserted in the complaint filed against you;
2. The complaint and any amendments thereto in the above-entitled action;
3. Any motion for preliminary injunction and supporting documentation as well as opposition filed thereto;
4. Any advertising materials generated by your company in marketing the product that is the subject of the suit against it apart from materials available on your company’s website; and
5. Any advertising materials generated by plaintiff company in marketing the product that is the subject of the suit.
