Insurance Coverage For Intellectual Property Torts In Cyberspace

Periodical: Mealey's
Date: July 1997

A commentary article reprinted from the July 3, 1997 issue of Mealey’s: Emerging Insurance Disputes

The Internet (including the World Wide Web) and commercial online services (collectively “cyberspace”), have been widely touted as the new frontier of commerce, communications and entertainment.  Cyberspace is also generally considered to be especially fertile ground for generating new and difficult legal issues.  Of course, whenever there are important and unsettled legal issues, litigation to settle those issues will inevitably follow, and fast on the heels of that litigation will come a spate of insurance coverage cases to determine who really pays for the defense and indemnity costs generated by the underlying cases.  In this age of rapidly-advancing technology and rapidly-filed lawsuits, there will be little “lag time” between the initiation of legal actions over rights in cyberspace and the tender of claims for insurance coverage for potential liabilities in cyberspace. 1

Moreover, the online world creates the potential for risks which may not be faced so frequently or at all in real world situations, much of this due to the relative ease and low expense of establishing an online presence.  Although this low entry cost creates exciting new opportunities for entrepreneurs, it also exposes them to unexpected risks: the author striving unsuccessfully to have his stories published may convert the same computer he uses for word processing to the task of publishing his works on the Internet, but only at the cost of increased exposure to liability for copyright infringement and defamation

Insurers and policyholders therefore cannot afford merely to await the inevitable flood of litigation in the area of cyberspace law before preparing to address the insurance coverage issues that are likely to arise in this area.  In the context of cyberspace, the majority of controversies are, not surprisingly, in the areas of intellectual property law especially copyright and trademark and the dignitary torts of defamation and invasion of privacy.  Accordingly, therefore, the majority of cyberspace coverage cases are likely to arise in the familiar area of advertising injury coverage.2

This article will discuss the law of advertising injury insurance coverage as that law is likely to be applied in the context of online intellectual property torts.  The next section of the article will briefly review the law of copyright, trademark and patent infringement.  The third section will briefly outline the fundamentals of advertising injury coverage, including whether the particular torts at issue constitute “enumerated offenses” subject to advertising injury coverage and will also consider other issues likely to arise as courts, policyholders and carriers attempt to determine whether coverage exists for cybertorts. 

I.    The Emerging Law Of Online Intellectual Property Torts

As one might expect, given that cyberspace is a medium for transmission of information, a substantial number of disputes respecting online activities have to date been concerned with the areas of intellectual property, i.e. trademark and copyright infringement.3  Moreover, although one should not suppose that future cyberspace disputes will be limited to such controversies, these, along with the torts of defamation and invasion of privacy, appear to be the only types of disputes which would even arguably raise the issue of potential insurance coverage under CGL policies.4  Accordingly, the following brief overview of cybertort case law is restricted to these areas. 

      A.  Copyright Infringement Online

The United States Copyright Act authorizes protection of “original5 works of authorship fixed6 in any tangible medium of expression.”7  Such protection does not extend to the “ideas” or facts contained in a work, but rather only to the particular original “expression” of ideas or facts embodied in the work.8  Copyright law protects eight categories of works: literary (including software programs); musical (including lyrics); dramatic (including any accompanying music); pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings;9 and architectural works,10 and, subject to certain exceptions,11 precludes any person from reproducing, adapting, and publicly distributing, performing, or displaying such works without permission of the copyright holder.12

Liability for copyright infringement may be either (1) direct, (2) contributory, or (3) vicarious.  A person directly infringes another’s copyright by either reproducing, adapting, publicly distributing, performing, or displaying, or importing a copyrighted work.13  Direct infringement is a strict liability tort: the infringer need not have any knowledge of infringement or intent to infringe.14  A contributory infringer is one who, with knowledge, substantially assists in the infringing activity.15  Vicarious liability for copyright infringement exists as to any person who has the right and ability to control the infringer and receives a direct financial benefit from the infringement.16  A plaintiff may prove infringement by demonstrating (1) ownership of the copyright at issue; and (2) copying by the defendant.17  Copying may be proven by showing that defendant had access to the copyrighted work, that the allegedly infringing work is “substantially similar” to the copyrighted work, and that one of the enumerated rights conferred by the Copyright Act has been implicated by the defendant’s actions.18  Remedies for copyright infringement include both damages and injunctive relief.19

Because words, pictures and music can be easily, cheaply and anonymously copied and transmitted through cyberspace, online violation of copyright is quite likely fairly common.  Cases to date have involved asserted violations of copyright in a diverse body of works, including Playboy™ centerfolds,20 religious texts,21  computer software (specifically, video games),22  online catalogs23 and sound recordings.24  It would appear inevitable that every category of copyrightable work other than architectural or sculptural works will ultimately be digitizable and ready for transmission online. 

      B.  Trademark And Unfair Competition Online

There already are several reported online trademark cases, whose number will inevitably increase with the passage of time.25 The Lanham Act26 is currently the most widely used mechanism for the protection of trade or service marks, trade names and trade dress.27 Section 32(1) of the Act prohibits the unauthorized commercial use of a federally registered mark28 in connection with the sale, offer for sale, distribution or advertisements of goods or services, if likely to cause confusion, mistake or to deceive.29  Section 43(a) of the Act prohibits (1) the use in commerce of any mark (whether or not federally registered) if such use is likely to cause confusion as to the source, sponsorship or affiliation of the goods or services in question; and (2) any false or misleading statement in commercial advertising that misrepresents the nature or attributes of the goods or services advertised, or of competitive goods or services.30  Successful plaintiffs are entitled to injunctive relief and/or damages (including treble damages, costs and attorneys’ fees) with one significant exception: under certain circumstances, Section 32(2)(c) of the Act prohibits granting injunctive relief against publishers of “newspaper[s], magazine[s], or other similar periodical or an electronic communication containing infringing material or violating matter.”31  (Emphasis added.)

Traditional Lanham Act remedies are not, however, the only protections available to those whose marks have been improperly used.  The federal government recently added statutory protection against “dilution” of trademarks,32 entitling a successful plaintiff to equitable relief and, if the dilution was “willful,” monetary damages.33  State trademark laws provide similar protections and are commonly added as a pendent cause of action to claims brought under the Lanham Act.  Finally, although common law “unfair competition,” or “palming off,” does not involve infringement of a trademark, it addresses similar problems of customer confusion, the essence of the tort being “the sale of the goods of one manufacturer or vendor for those of another.”34

      C.  Patent Infringement Online

A “process, machine, manufacture or composition of matter” may be patented if it is “new and useful”35 and “non-obvious” in light of “prior art.”36  However, certain advances have been held not to be patentable, regardless of how new, useful or non-obvious they may be: typical examples are abstract mathematical algorithms37 and methods of doing business.38  However, some unpatentable subject matter, such as mathematical formulas, may be protected if they are incorporated within an invention that is as a whole patentable.  Thus, in Diamond v. Diehr,39 the United States Supreme Court held that a process for curing rubber was patentable subject matter notwithstanding that one critical element of the process was a computer using a (presumptively unpatentable) equation,40 thus suggesting the potential availability of patent protection for software.  Since then, the United States Patent Office has granted thousands of software-related patents,41 and lower courts have rendered decisions arguably consistent with the notion that software is, at least in some circumstances, patentable matter.42

The Patent Law imposes liability for direct patent infringement upon one who “makes, uses, offers to sell or sells” an infringing product.43  A person may be liable for contributory infringement if he knowingly sells an infringing item which is not “a staple article or commodity of commerce suitable for substantial noninfringing use,”44 and may also be liable for actively inducing infringement.45  Although there have been no reported cases to date involving allegations of patent infringement as the result of activities in cyberspace, the possibility for online patent infringement claims may arise from several sources.  First, depending on how the term “offer to sell” is interpreted by courts, online marketing activities may create the potential for direct infringement liability.46  Second, if courts become more receptive to the notion that software may in some situations be patentable, the online electronic transmission and copying of software may someday be considered actionable direct infringement.  Finally, liability for contributory infringement or inducement to infringe may conceivably exist by virtue of online activities. 

II.  Advertising Injury Coverage Issues

The coverage provision which policyholders are most likely to rely on in seeking coverage for cyberspace torts is the “advertising injury” coverage provided by most CGL policies.47  Over the past decade or so, policyholders have sought coverage under these provisions for torts as diverse as copyright, trademark and patent infringement, RICO and antitrust claims, securities violations and various types of consumer fraud.  Although courts have generally rejected policyholders’ more ambitious and creative efforts to find coverage in the areas of business torts and patent infringement, which are not enumerated as covered offenses in the policy language, coverage has often been extended for specifically enumerated advertising injury offenses, provided that the policyholder can demonstrate that such offenses were committed during the policy period and that its alleged liability arose in the course of “advertising activities” as defined in the policy language. 

      A.  Policy Language

            1.   Coverage Grant

Advertising injury coverage was first introduced as part of the 1981 broad form endorsement to the 1973 Insurance Services Office (“ISO”) CGL policy form.  This initial incarnation of advertising injury coverage stated that:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of Personal Injury or Advertising Injury to which this insurance applies. 

The 1981 broad form language defined “Advertising Injury” to mean:

Injury arising out of an offense committed during the policy period occurring in the course of the named insured’s advertising activities, if the injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition or infringement of copyright, title or slogan. 

In 1986, ISO amended its CGL policy to include advertising injury coverage (as well as personal injury coverage) part of Coverage Part B.  In addition, ISO changed the definition of “Advertising Injury” so as to eliminate three of the 1973 enumerated offenses-defamation, piracy and unfair competition.  The 1986 policy states that:

            b.   This insurance applies to:

(2)  “Advertising injury” caused by an offense committed in the course of advertising your goods, products or services; . . . . 

1.  “Advertising Injury” means injury arising out of one or more of the following offenses:

a.  Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services;

b.  Oral or written publication of material that violates a person’s right of privacy;

c.  Misappropriation of advertising ideas or style of doing business; or

d.  Infringement of copyright, title or slogan.

Because advertising injury coverage is offense-based, rather than occurrence-based, there are likely to be few, if any, “long tail” advertising injury claims lurking about.  Inevitably, then, the importance of the 1973 policy language has diminished and will continue to fade over time.  The significance of the language has not, however, vanished, both because many of the decisions on advertising injury coverage interpret the 1973 language and because some carriers continue to use the 1973 language in some of their policies.

            2.   Exclusions

CGL policies generally exclude coverage for:

“Personal injury” or “advertising injury”:

(1)  Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity;

(2)  Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period;

(3)  Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured; or

(4)  For which the insured has assumed liability in a contract or agreement.  This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agreement.

*     *     *

“Advertising injury” arising out of:

(1)  Breach of contract, other than misappropriation of advertising ideas under an implied contract;

(2)  The failure of goods, products or services to conform with advertised quality or performance;

(3)  The wrong description of the price of goods, products or services; or

(4)  An offense committed by an insured whose business is advertising, broadcasting, publishing or telecasting. 

      B.  Advertising Injury Coverage Online

The most controversial issues litigated in the area of advertising injury coverage have been: (1) what kinds of torts are embraced within the enumerated offenses of advertising injury coverage; (2) what, precisely, constitutes “advertising”; (3) what causal connection to advertising is necessary for an offense to have been committed “in the course of” advertising activities; and (4) whether coverage is barred by any exclusion.  These issues will be examined in turn with an emphasis on how they might be applied in the online context. 

            1.   Enumerated Offenses

Perhaps the greatest controversies in the area of advertising injury law to date have involved determining whether particular torts fall within the ambit of the covered offenses enumerated in the advertising injury definition.  Policyholders have frequently argued, with only minimal success, that numerous torts not specifically listed in the definition of advertising injury are in fact embraced within the coverage.  The following discussion of the issues raised by these attempts to expand coverage beyond the express terms of the policies is organized according to the underlying torts for which coverage has been claimed rather than by the specific enumerated offenses listed in the policy language.  Moreover, the status of certain types of claims as enumerated offenses is usually non-controversial because such claims are specifically identified in the policy language - e.g., copyright infringement, libel, slander and defamation.48  Such claims are not treated by the discussion below, which concentrates on the more hotly contested coverage claims.49

                  a.   Patent Infringement

Policyholders have frequently, and almost always unsuccessfully, attempted to obtain coverage for suits alleging that they have infringed a third party’s patents.  Courts have for the most part rejected these efforts, with a majority holding that patent infringement is not an enumerated offense.50  Specifically, most courts have ruled that “patent infringement” does not fall within the advertising injury offenses of “piracy,” ‘`unfair competition,” “misappropriation of advertising ideas or style of doing business” or “infringement of title.”  As one court put it in an oft-quoted passage:

“It is nonsense to suppose that if the parties had intended the insurance policy in question to cover patent infringement claims, the policy would explicitly cover infringements of ‘copyright, title or slogan’ but then include patent infringement, sub silentio, in a different provision, by reference to ‘unauthorized taking of .  .  .  [the] style of doing business.’”51

This view has been adopted by a wide majority of courts.52  By contrast, only a scattering of cases have accepted policyholders’ arguments that patent infringement falls within an enumerated offense.53

                  b.   Trademark Infringement

The issue of whether trademark infringement is an enumerated offense under a particular policy must be considered in light of the precise language of the agreement.  The 1981 Broad Form Endorsement contained a provision specifically excluding “advertising injury arising out of .  .  .  Infringement of trademark, service mark or trade name, other than titles or slogans, by use thereof on or in connection with goods, products or services sold, offered for sale or advertised.”  This exclusion was deleted from the 1986 ISO policy form, which added the enumerated offense of misappropriation of advertising ideas or style of doing business. 

The specific exclusion for trademark infringement under the 1981 Broad Form language has been given effect by courts.54  However, the courts are split on whether trademark infringement is covered under the 1986 policy language.  Some courts have found trademark infringement to fall under the offense of misappropriation of advertising ideas or style of doing business,”55 or under the “infringement of .  .  .  title or slogan” offense, at least where the claim of infringement was in fact based on the allegedly illegal use of an actual slogan or title.56  Other courts have criticized such decisions and denied coverage for trademark claims.57  Finally, both insurers and policyholders should note that claims under the anti-dilution statute, 15 U.S.C. § 1125(c)(2), provide for damages only if the conduct was willful, which may independently preclude coverage for such claims under statutes such as California Insurance Code § 533 or under the applicable policy language. 

                  c.   Conclusion

Any analysis of whether a particular cybertort qualifies as an advertising injury “enumerated offense” must take into account (1) the specific policy language to be applied, including whether the policy at issue uses the 1973, 1981 or 1986 standard ISO language or some manuscript variant thereof, and (2) the applicable law respecting coverage for the particular tort[s] alleged under the policy language in question. 

            2.   What is ‘Advertising?’

Advertising injury coverage grants provide coverage only for those enumerated offenses which occur “in the course of the named insured’s advertising activities.”58  The great majority of cases analyzing the proper meaning of the term “advertising” or “advertising activities” have focused on the scope or extent of the activities in question.  Thus, the question of interpreting “advertising” has most frequently arisen in cases where the insured has solicited business from only a limited number of persons, or has solicited business by means not typically considered “advertising,” such as in person solicitation.  A number of cases support the insurers’ argument that the term “advertising” refers only to the widespread dissemination of information to the general public for monetary gain.[lix]  Policyholders, by contrast, rely on cases interpreting the term broadly.60

The issues involved in determining what constitutes “advertising activities” online promise to differ, perhaps considerably, from those raised in the off-line context.  To some extent, there may still be controversies over whether an insured’s solicitation of business is widespread enough to qualify as “advertising.”  On the one hand, since any posting to a BBS or any material maintained on a Website is potentially accessible to anyone in the world with Internet access, it is probable that courts will equate such online communication to traditional means of broadcasting such as radio or television and find that widespread transmission has occurred.  However, the picture is less clear with respect to other forms of online communication such as E-mail or online chat rooms. 

For example, although E-mail potentially could, unless encrypted, be accessed by persons aside from the addressee, the Electronic Communications Privacy Act61 has imbued public E-mail communications with the same expectation of privacy as first class mail.  Accordingly, in those jurisdictions which construe “advertising” to require dissemination of information to the general public, E-mail solicitation of one or only a few persons may not constitute advertising activity.  Similarly, statements made to only a few persons in an online chat room may address too limited an audience to constitute “advertising” in some jurisdictions. 

A difficult issue likely to arise more often in the online context than off-line is whether an online posting or transmission is “commercial” enough to qualify as “advertising.”  Many Websites created by businesses are, of course, replete with invitations to purchase the company’s products and/or services, solicitations which inarguably would constitute advertising.  However, there are many conceivable commercial uses of cyberspace which could not so easily be categorized. 

For example, suppose that Joe, the proprietor and head chef of Joe’s Famous Fish House, establishes a Website on which he answers questions about seafood cooking and posts many of the recipes which have justly made the Fish House famous.  Joe does not actively solicit business on the site, although the site does identify Joe as proprietor of the Fish House and identify the city in which the Fish House is located.  If Joe arguably commits an advertising injury enumerated offense during his Website-related activities (as by infringing another’s copyright, title or slogan), is his activity in maintaining the Website “advertising?”

Joe and other policyholders obviously will argue that the answer should be “yes,” holding that some visitors to the site, impressed by Joe’s knowledge of cooking techniques and tantalized by his mouth-watering descriptions of his specialties, will undoubtedly visit the Fish House next time they are in town.  Accordingly, insureds will maintain that operating the site constitutes advertising activity because some economic benefit may accrue to Joe as a tangential result thereof. 

By contrast, insurers can be expected to assert that advertising injury coverage under CGL policies was not intended, and could not reasonably be interpreted, to extend coverage for any activity whatsoever which places the insured in the public eye and thus increases the likelihood of sales, but only for communications which actively solicit business.62  This is especially so, it would seem, when the activity in question can most reasonably seen as the actual provision of a good or service.  Thus, the mere fact that a person who reads and enjoys a Robert Ludlum novel is as a consequence more likely to purchase another Robert Ludlum novel does not transform those novels into “advertisements,” any more than the fact that an attorney’s client and others are sufficiently impressed with his legal services to engage him on other matters transforms every act done by the attorney in the course of the representation into “advertising activity.”

Although it cannot be foreseen with any clarity how these competing arguments will be resolved, several factors would appear relevant to the issue of whether a particular online transmission of data constitutes “advertising” for coverage purposes.  Most importantly, one should examine whether the tortious online acts in question are geared towards inducing the purchase or use of goods or services separate and apart from the data being accessed.  Thus, a website devoted to promoting a recently-released or about to be released movie should qualify as online “advertising activity,” because its purpose is to induce site visitors to see the movie. 

By contrast, online activity which functions as a transfer of a good or service or does not seek to entice cyberspace users to use or purchase some other good or service should not be considered advertising.  For example, in Sega Enterprises, Ltd. v. MAPHIA,63 the offending activity consisted of the defendant BBS operators allowing users to download plaintiff’s copyrighted video games.64  In such a case, the offending activity is most reasonably characterized as a sale or transfer of a product (the copyrighted software) rather than as an “advertisement” for that product. 

Obviously, a court determining whether online activity constitutes “advertising” should also consider whether access to the data in question is provided only upon payment of a charge.  Thus, the fact that a defendant required consideration for the privilege of downloading plaintiff’s copyrighted material should suffice to disqualify such downloading from being “advertising activity.”65  However, this factor is not conclusive: the provision of illicit software or other material should not qualify as advertising even if done gratis. 

It should also be noted that some online activities may include both advertising and non-advertising elements.  Thus, a Website will typically include a “home page” which introduces the visitor to the site and provides “click” access to the remaining areas on the site.  To the extent the Website is devoted to the online provision of goods and/or services, such home pages (or other pages or portions of pages) may contain written or graphical material describing or illustrating the wares to be found at the site and inviting the visitor (sometimes for a fee) to click for further access to those products or services.  In such a scenario the home page may well constitute “advertising,” while the remainder of the site (where the actual goods and services are sold or otherwise transferred) may not.  Under these circumstances, if a copyright dispute arose, coverage would be implicated (absent other defenses) only if the allegedly infringing material were on the home page - the “advertising” segment of the Website. 

            3.   Causation Issues

Even assuming the “enumerated offense” requirement has been satisfied and that the insured’s activities in question constitute “advertising,” insureds must still establish that the offense in question occurred “in the course” of such advertising in order to gain coverage under advertising injury provisions. 

The seminal case on this issue is the California Supreme Court’s decision in Bank of the West v. Superior Court,66 in which the Court found for the insurer on several grounds, including the above-mentioned rejection of “unfair competition” as an enumerated offense.67  In addition to this, however, the Court also specifically held that for advertising injury coverage to apply, the injury to the plaintiffs must have a direct causal connection with the advertising activities of the insured.  The Court rejected the insured’s argument that “there is coverage if any connection, however remote, exists between the Bank’s advertisements and the lending practices that harmed the [underlying] plaintiffs even if the advertisements themselves did not cause the harm.”68  Rather, the court stated that “advertising injury” must have a causal connection with the insured’s “advertising activities” before there can be coverage69 and made clear that the mere fact that a business advertised goods or services was insufficient to satisfy this causation requirement, even if it were alleged that those advertisements falsely or misleadingly described the product or service at issue.70

The causation requirement enunciated in Bank of the West has been followed, almost without exception, by other courts considering the applicability of advertising injury coverage.  Thus, numerous decisions have denied coverage on the ground that the injury in question could not have occurred in the course of the insured’s advertising activities.71  Moreover, even decisions which have extended coverage have expressly found that the Bank of the West causation requirement had been satisfied.72  Accordingly, to establish coverage, policyholders must be prepared to demonstrate, both legally and factually, that it is some aspect of the advertising itself, and not some subsequent though arguably related activity such as a sale of the advertised goods, that gives rise to the injury complained of. 

This has been held to mean that the enumerated offense in question must be committed in the very advertisement itself.73  Thus, if the offense under which coverage were sought were copyright infringement, the insured, to invoke coverage, must point to some element of the advertisement itself which allegedly infringed another’s copyright.  It would be insufficient merely to claim that the advertisement wrongly held out for sale copyrighted products if the advertisement itself were devoid of any copyrighted material. 

This distinction should apply with equal force in the online context.  For example, if a Website simply illicitly makes copyrighted material available to be downloaded for a fee, such activities should not be considered “advertising,” and no coverage should exist.  However, suppose the copyrighted material in question were available on a Website which contained “advertising.”  If that advertising contained no unauthorized copyrighted materials, there clearly could be no potential for coverage, notwithstanding that such materials were available for downloading elsewhere on the site. 

            4.   Exclusions

CGL policies typically contain numerous exclusions to advertising injury coverage which, depending on the facts of a particular case, may preclude coverage.  These include exclusions for the knowing publication of false material,74 for injury arising out of the oral or written publication of material whose first publication occurred prior to the policy period,75 for injury arising out of willful violation of a penal statute or ordinance,76 and for liability assumed under contract.77  Analysis of the applicability of such exclusions is fact-driven and generally requires consultation with experienced legal counsel. 

One exclusion which could apply, and should thus be considered, in nearly all online tort situations is the exclusion of advertising injury coverage for injury arising out of “an offense committed by an insured whose business is advertising, broadcasting, publishing or telecasting.”78  This provision would appear clearly to preclude advertising injury coverage for most OSPs, whose online activities should qualify as “advertising, broadcasting, publishing or telecasting.”  Moreover, the fact that an insured is in engaged in business operations other than providing online service should not affect this analysis, so long as the injury in question is alleged to have occurred in the course of the insured’s provision of online services. 

Thus, the fact that a company such as Microsoft engages in commercial operations other than operating an OSP should not alter the conclusion that it is in the “business” of “advertising, broadcasting, publishing or telecasting.”  Obviously, the more limited an insured’s online activities are, the more likely it should not be regarded as engaged in such a business.  However, the applicability of the exclusion should not depend solely on whether a policyholder’s advertising, broadcasting, publishing or telecasting activities comprise any particular percentage of its total commercial activities, although this may in some cases be relevant.  Rather, any determination would depend on the specific facts presented in a particular case. 

III. Conclusion

Inevitably, more and more coverage disputes over claims arising in cyberspace will arise over the coming years.  As noted above, while many issues raised by such claims are likely to draw upon, and perhaps be decided by, the large body of advertising injury case law to date, the peculiar properties of online tort disputes may raise entirely new coverage issues, or impart a new “spin” to issues which corporate risk managers and insurance claims personnel had considered relatively well-settled.  Both insurance carriers and policyholders must therefore carefully analyze their applicable policy language in light of the facts of any case before making a coverage determination in this new and expanding area of law. 

Our Litigation Department specializes in civil litigation at all levels of the judiciary, and has wide-ranging experience in litigating business, commercial and entertainment-industry related matters. We have extensive experience in accounting and partnership, antitrust, and securities and corporate litigation. Additional areas of emphasis include copyright and intellectual property, real estate and products liability litigation as well as in the appellate practice.

Rosenfeld, Meyer & Susman was founded in 1957.  The Firm’s areas of expertise include: Labor and Employment Law, Litigation, Corporate, Entertainment, Trusts and Estates, Taxation, Family Law, Insurance Coverage and Defense, Real Estate and Employee Benefits.