• September 26, 2012

You sleep about 8 hours out of every 24 (if you are lucky), which leaves 16 hours of consciousness per day.  Sixteen hours each day for businesses and individuals to get your attention and, once they have that precious sine qua non underlying every human interaction, to get your money, your help, or whatever it is of value that you have and that they want.

You might wake up to a clock/radio.  If you do, the parasitism of selling starts before you are even conscious.  Otherwise, maybe you have a few minutes before you are entirely immersed in a swelter of selling that will not end until you go back to sleep.  How is a single vendor supposed to get your attention? How will it get its sustenance? How will it survive?

The free market is a cut-throat Darwinian ecosystem of competition to the death.  If it were not regulated, there can be no doubt that we would all be even more beset by annoying, intrusive, deceptive selling than we constantly are.  Thankfully (in my view), most of us agree with this proposition (the need for regulation of advertising) and there are many state and federal laws that seek to impose some restraint on just how far individuals and businesses can go in order to get in your face.

Businesses themselves are, of course, victims as well as perpetrators of the feeding frenzy.  For example, “lead generation” is an enormous industry in which sellers promote their goods and services to businesses to attract customers.  (And sometimes the tactics are unlawful.)

Sellers of car stereo systems, to take one example of a nearly infinite number, are not primarily in the business of advertising.  Maybe they rely on third-parties to help them connect with potential buyers.  And what does a seller of car stereo systems know about the complex web of state and federal regulations on advertising?

This is all by way of saying that businesses, with varying degrees of culpability, may themselves being preyed upon by other businesses selling goods or services that violate state or federal law.  And they might break the law without knowing it. And they might want to insure against this risk.

So-called “junk faxes” have been regulated for over twenty years now.  For over twenty years, plaintiffs’ lawyers have been holding businesses liable under state and federal laws for this widely disliked, unwelcome, and intrusive advertising method.  Can businesses claim that any such liability is an “advertising injury” under their insurance policies?

This inquiry will require reference to the particular insurance policy.  Sometimes, however, policies are ambiguous, and courts are left to figure out what is covered and what is not.

U.S. Court of Appeals for the Eighth Circuit has just sided with the large majority of U.S. Courts of Appeal in favor of Autopia in its battle for insurance coverage for its battle against junk fax plaintiffs in their battle against unwanted intrusions into their mindshare.

(Actually, thanks to a common civil litigation tool, a so-called Miller-Shugart settlement, Autopia was not the real winner in the case.  Rather, Autopia’s adversary in the “junk fax” case essentially “stood in the shoes” of Autopia, the insured, on the insurance coverage case and seems to now be in a position to collection more than $1 million in insurance coverage for the vendor’s unlawful marketing practice.)

Seth Leventhal is a Minnesota civil litigator who understands the risks and benefits of Miller-Shugart settlements and who does not care for “junk faxes” but nevertheless has experience defending TCPA claims on behalf of defendants (junk faxes are irritating but should liability exceed $1 million?)

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