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Insurance Coverage for False Advertising Claims
Section 43(a) of the Lanham Act, a federal trademark statute, establishes a cause of action for false advertising and provides that any person who “uses in commerce any ' false or misleading description of fact, or false or misleading representation of fact, which in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities” shall be liable to any person who believes that he or she is or is likely to be damaged by such act. See 15 U.S.C. ' 1125(a). A plaintiff who prevails on a Lanham Act false advertising claim can obtain relief that may deal a mortal blow to the defendant's product or product lines ' the court can issue an injunction barring the challenged advertisements, it can order corrective advertising or even a product recall if the false advertising is on the product's packaging and labeling. Additional remedies under the Lanham Act include damages, attorneys' fees, and any equitable remedy that the court determines would fairly compensate the plaintiff. Not only can the verdict in a false advertising suit have devastating consequences in terms of injunctions and monetary damages, the litigation process itself is so costly that it can be equally onerous.
An often-ignored component in the cost matrix for the defense of these claims is the availability of insurance coverage. Insurers generally contend that no coverage exists because their policies do not cover business risks such as “false advertising,” and even if the possibility of coverage exists, one or more of the policy exclusions eviscerates coverage. All too often companies accept the insurer's position at face value and fail to explore coverage further. This is a costly mistake, as courts have often found coverage for these types of claims.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Protecting Innovation in the Cyber World from Patent Trolls
With trillions of dollars to keep watch over, the last thing we need is the distraction of costly litigation brought on by patent assertion entities (PAEs or "patent trolls"), companies that don't make any products but instead seek royalties by asserting their patents against those who do make products.