In recent years, privacy law has exploded both here in America and abroad. Two of the most prominent examples include the California Consumer Privacy Act of 2018 and the General Data Protection Regulation in the European Union. Likely because of the focus of these well-known pieces of legislation, most people tend to associate modern privacy laws with internet history and data stored in phones or other devices. Some privacy laws, however, concern a much more personal type of data—your physical features.

Because the insurer has a duty to defend if a claim is even potentially covered, insurers usually take on defense of a claim that may be covered. However, if an insurer disputes coverage, it may initiate a Declaratory Judgment Action to determine whether it owes a duty to defend the policyholder in the underlying action. Alternatively, it could simply decline coverage altogether, in which case the policyholder may file a declaratory judgment action (or a third-party declaratory judgment claim in the underlying action) or wait until the underlying litigation ends and file suit against the insurance company seeking reimbursement (also called recoupment of defense).

Commercial General Liability policies (“CGL”) have wrestled with articulating limits for coverage triggered under its “advertising injury” coverage since its inception in 1976 as an add-on element to the standard form CGL policy. As such, courts have had to assess their scope when analyzing what intellectual property torts might fall within their ambit. Especially where facts, not labels, are causes for actions that control and the duty to defend is adjudged from the layman’s perspective in reading policy language, this has led to inconsistent decisions, reversals upon further review of the nature of the torts claims asserted and their intersection with the insured’s coverage law, and uncertainty.

Express coverage for antitrust lawsuits arise under a variety of policy forms that do not expressly reference antitrust tort. Potentially applicable policies include: Directors and Officers (“D&O”), Errors and Omissions (“E&O”), Commercial General Liability (“CGL”), and, on occasion, Media[1] policies as well as sublimited antitrust policies or endorsements.

Allocation issues involving “mixed actions” have emerged as a potent source of controversy. A developing body of case law addressing allocation limits the right of insurers to prorate their defense payment where the policies don’t allocate 100% of defense fees to the insurers.

Implicit disparagement is an insurance coverage doctrine often overlooked or misapplied. It first surfaced within the final decade of the last millennium. The reasoning was always there. But, coverage practitioners had not presented the available arguments that demonstrated that “disparagement” offense policy did not require that the allegations addressed all elements to evidence common trade libel law or product disparagement to establish coverage under offense “d”.