IP Owners As Defendants/Counterdefendants
Issues to Confront in Assessing the Potential for Insurance Coverage
In assessing the impact of coverage on litigation strategy, the following questions must be considered:
(1) What are the goals of the plaintiff or counterclaimants in monetary versus nonmonetary relief?
(2) Will your company’s carriers contribute to a settlement if nonmonetary issues can be resolved?
(3) Can you procure full reimbursement for the attorneys’ fees you incur in defense of IP/antitrust litigation, even if you are also a plaintiff?
(4) Is there an issue of allocation re recovery of attorneys’ fees in such a situation or simply where there are some claims that are covered and others that are not – again, depending upon the forum whose coverage law will apply? (5) What if you do not have first dollar coverage and the catastrophic loss provisions of your self-insured retention do not permit the attachment of any right to reimbursement of attorneys’ fees until the threshold level is met (i.e., $5M-$50M) is not uncommon for major corporations?
(6) What goals of the plaintiff or counterclaimants are monetary versus non-monetary?
(7) Can your carriers contribute to a settlement if non-monetary issues can be resolved?
(8) Can you procure full reimbursement for attorneys’ fees incurred in defense of IP litigation, even if you are also a plaintiff?
(9) Is there an issue of allocation re recovery of attorneys’ fees?
(10) What if you do not have first dollar coverage – catastrophic loss that exceeds SIR for attorneys’ fees incurred or for damage exposure ($5M, $10M, $15M, $20M, $25M)?
In answering these questions, you may well recognize opportunities for involvement of insurer proceeds in either limiting defense costs or avoiding them entirely.
In assessing the impact of coverage on litigation strategy, the following questions must be considered:
(1) What are the goals of the plaintiff or counterclaimants in monetary versus nonmonetary relief?
(2) Will your company’s carriers contribute to a settlement if nonmonetary issues can be resolved?
(3) Can you procure full reimbursement for the attorneys’ fees you incur in defense of IP/antitrust litigation, even if you are also a plaintiff?
(4) Is there an issue of allocation re recovery of attorneys’ fees in such a situation or simply where there are some claims that are covered and others that are not – again, depending upon the forum whose coverage law will apply? (5) What if you do not have first dollar coverage and the catastrophic loss provisions of your self-insured retention do not permit the attachment of any right to reimbursement of attorneys’ fees until the threshold level is met (i.e., $5M-$50M) is not uncommon for major corporations?
(6) What goals of the plaintiff or counterclaimants are monetary versus non-monetary?
(7) Can your carriers contribute to a settlement if non-monetary issues can be resolved?
(8) Can you procure full reimbursement for attorneys’ fees incurred in defense of IP litigation, even if you are also a plaintiff?
(9) Is there an issue of allocation re recovery of attorneys’ fees?
(10) What if you do not have first dollar coverage – catastrophic loss that exceeds SIR for attorneys’ fees incurred or for damage exposure ($5M, $10M, $15M, $20M, $25M)?
In answering these questions, you may well recognize opportunities for involvement of insurer proceeds in either limiting defense costs or avoiding them entirely.
