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Disputes over Insurance Coverage for Alleged TCPA Violations
During the past several years, there has been an increase in the number of lawsuits that allege violations of the Telephone Consumer Protection Act, 47 U.S.C. ' 227 (2006) (“TCPA”), and a corresponding increase in the number of coverage disputes over TCPA liabilities. The TCPA, enacted in 1991, restricts telephone (including cellular phone) solicitations and limits the use of fax machines in contacting individuals or businesses which have not given prior express consent to receive those solicitations. The TCPA provides for statutory penalties ranging from $500 to $1,500 per individual communication, with that higher penalty imposed as treble damages for willful or knowing violations of the Act. 47 U.S.C. ' 227(b)(3)(B, C) (2006).
TCPA suits are attractive to plaintiffs' lawyers because litigants have the option of seeking either their actual damages or statutory damages instead. Plaintiffs' lawyers use putative class actions in an attempt to aggregate the number of violations on which to recover ' and as technology continues to make mass marketing easier and more efficient, the number of violations resulting from a single marketing program can be enormous.
In seeking coverage for TCPA claims, policyholders have typically argued that those claims are covered under their policies as “personal and advertising injury” liabilities. By contrast, insurers have argued that: 1) TCPA claims do not fit within the definition of “advertising injury”; and 2) damages under the TCPA are punitive in nature, and thus uninsurable as a matter of public policy. Some insurers have also invoked policy exclusions to defeat TCPA coverage claims, while policyholders have argued that those exclusions do not apply. Below, we discuss each of these arguments.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?