LJN Newsletters

Recent cases in entertainment law.

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 a 2-1 opinion, the Third Circuit recently affirmed summary judgment in favor of an excess medical malpractice insurer in a case involving both policy construction and evidentiary issues. In Lexington Insurance Company v. Western Pennsylvania Hospital, et al., 2005 WL 2174003 (3d Cir. 9/9/05), West Penn Hospital had three layers of medical malpractice coverage. The first layer was a primary policy issued by PHICO. The PHICO policy provided both general liability, on an occurrence basis, and medical malpractice coverage on a claims-made and reported basis. The next layer was $1 million worth of excess coverage provided by the Pennsylvania Medical Professional Liability Catastrophe Fund (the "CAT Fund"). Lexington issued an excess policy over those first two layers. The CAT Fund coverage was also claims-made and reported.

In Liberty Surplus Ins. Corp. ("Liberty") v. Segal Co. ("Segal"), Nos. 04-5562-cv & 04-6005-cv, 2005 U.S. App. LEXIS 16601, 2005 WL 1869146 (2d Cir. Aug. 9, 2005), in a per curiam opinion, the Second Circuit reaffirmed its view that New York allows awarding a successful insured its declaratory action attorneys' fees in two instances: 1) where the "policyholder has been cast in a defensive position by its insurer in a dispute over the insurer's duty to defend," or 2) where the insurer is guilty of bad faith.

Recent developments in e-commerce law and in the e-commerce industry.

Now, in the Age of e-Commerce, the fastest way to find a lawyer is to Google one, or to use online lawyer-finder tools such as those that companies like ALM, the owner of e-Commerce Law & Strategy, offer. With that change has come a new challenge for enterprising attorneys: How to get their names to the top of the 5.76 million spewed back when a user queries for, say, "New Jersey divorce lawyers."
The answer is sponsored links: paying Google or Yahoo!, or other Web search engines, for prominent placement when a user types in a specific term. It's an auction-like system in which the most aggressive advertisers can claw their way to the top, and reap the benefits of being there.

Business lawyers ' even tech lawyers ' lead unexciting lives. Reading and writing contracts keeps them stuck in front of a computer or a Blackberry. Even when they work from such "exotic" locations as a coffee shop or an airport lounge, they can't get away from words on a screen.
But sometimes, contract review requires that lawyers have the detective skills of a Sherlock Holmes, when they have to read the parts of a contract that aren't even there.

They're out there and they're armed. They're armed with knowledge of the vulnerabilities of your law firm's IT systems that could bring operations to a grinding halt or expose the firm to liability. They know where confidential information is kept, which data is essential and they already have access to the network. Who are they? They're not hackers bent on destruction who launch anonymous attacks on e-commerce operations and your own firm from afar. They're your colleagues.