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Coverage for Unsolicited Faxes
Two recent decisions ' one by an Illinois state court and the other by the Fourth Circuit Court of Appeals ' reveal that courts remain divided as to whether general liability policies provide coverage for fax-advertising claims under the Telephone Consumer Protection Act (“TCPA”). Generally, the TCPA prohibits, among other things, the use of fax machines or other devices to send “an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. '227(b)(3). The TCPA provides a private right of action by the recipients of such faxes to sue the senders. Id. Notably, under the TCPA, the recipient does not have to demonstrate any injury to prevail on its claim; the receipt of an unsolicited fax is sufficient to trigger liability under the statute.
In Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631 (4th Cir. 2005) (Va. law), the Fourth Circuit held that an insurer did not have a duty to defend or indemnify an insured against alleged violations of the TCPA. In contrast, in Valley Forge Ins. Co. v. Swiderski Electronics, Inc., 834 N.E. 2d 562 (Ill. App. 2005), an appellate court in Illinois rejected the Resource Bankshares analysis and held that the insurer was obligated to provide a defense. The contrasting results in these two cases ' as well as in other cases ' stem solely from differing interpretations of the scope of the “personal and advertising injury” and “property damage” coverages under a general liability policy.
With respect to advertising injury coverage, the Valley Forge and Resource Bankshares' policies are similar: The policies afford coverage for, among other things, claims arising from written or spoken material that violates a person's right of privacy. In Resource Bankshares, the Fourth Circuit held that the type of “privacy” at issue under advertising injury coverage did not include alleged violations of the TCPA. More specifically, quoting the Seventh Circuit's decision in American States Ins. Co. v. Capital Assoc. of Jackson County, Inc., 392 F.3d 939 (7th Cir. 2004), the Fourth Circuit explained that:
Privacy is a word with many connotations. The two principal meanings are secrecy and seclusion, each of which has multiple shadings. A person who wants to conceal a criminal conviction, bankruptcy, or love affair from friends or business relations asserts a claim to privacy in the sense of secrecy. A person who wants to stop solicitors from ringing his doorbell and peddling vacuum cleaners at 9 p.m. asserts a claim to privacy in the sense of seclusion.
The Fourth Circuit commented that the Seventh Circuit's passage “puts words to the gut instinct one feels when comparing the class-action complaint with [the] policies: if the class-action complaint alleges any violation of privacy, it is 'seclusion' privacy.” Concluding that the privacy interests covered by the policies are secrecy ' or content-based ' interests, the Fourth Circuit found that “seclusion” privacy claims do not fall within the advertising injury coverage.
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.
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.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
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.
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?