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Cover the Call: Coverage for Violations of the TCPA
The Telephone Consumer Protection Act ('TCPA'), 42 U.S.C. '227, was enacted to protect the privacy of individuals and businesses that were being inundated with unwanted faxes. The TCPA makes it unlawful 'to use any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine.' The statute expressly declares that its intent is to protect 'privacy rights.' 42 U.S.C. '227(b)(2)
(B)(ii)(I).
The term 'unsolicited advertisement' is defined as 'any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.' 42 U.S.C. '227(a)(5). The TCPA imposes damages of $500 for each violation, which can be trebled if the defendant willfully or knowingly violated the statute.
Personal and advertising injury coverage in the comprehensive general liability insurance policy covers violations of the right of privacy. When a complaint alleges, or could be construed to allege, or could be amended to allege, a violation of the right of privacy, an insurance company has a duty to defend. In addition, the CGL policy provides an obligation for an insurance company to pay damages that the policyholder becomes legally obligated to pay. For the most part, the CGL policy does not distinguish between a legal obligation that arises from contract, tort, or statute. If the policyholder is legally obligated to pay because of a covered injury ' bodily injury, property damage, or advertising and personal injury, for example ' then the insurance company must pay that liability on behalf of the policyholder. Accordingly, whether damages are awarded under the TCPA as opposed to a common law invasion of privacy claim is irrelevant for coverage purposes. If the injury is an invasion of privacy, there is coverage. Because the TCPA provides damages for the invasion of privacy in advertising, an insurance company's coverage obligation should be clear.
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.
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?
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.