WHY LOOK FOR “BURIED TREASURE”?

Part Two of a Three Part Series

Intellectual Property Lawsuits Are Expensive

It is not uncommon, pursuant to AIPLA surveys for companies to expend $500,000 to $1,000,000 for defense of trademark and copyright infringement lawsuits.  More than five times that sum may be expended for patent infringement lawsuits.  Where insurer denial letters assert erroneous grounds for denial, a distinct opportunity for pursuit of coverage arises.

Pre-Judgment Interest May Be Recoverable

Prejudgment interest typically runs from the date of invoice of attorneys’ fees to an insured or date of settlement (although from jurisdictions make the sum recoverable dependent on the date of payment of a settlement).  The majority of forums permit recovery of prejudgment interest in a range from 8 to 12%.  Oklahoma permits 15%.  Under certain circumstances, Texas permits 18%.

Where an insurer’s failure to pay a defense or settlement benefit is at issue then recovery of prejudgment interest can greatly enhance the value of the recovered fees.  Indeed, one of the most salient investments businesses can make is to pay attorneys’ fees.  The return on those fees exceeds market interest rates in a number of jurisdictions.

Conclusion

For companies seeking funding for ongoing litigation, a ready source of capital may be pursuit of coverage claims following past denials of insurers in previously pending suits.  Critically, insurance coverage litigation requires a matter of months, not years, since discovery is rarely necessary.  See ©David A. Gauntlett, Insurance 101 — Insight for Young Lawyers — No Discovery Is Appropriate in Addressing Coverage for Intellectual Property Disputes, Coverage, July/Aug. 2009.

Watch for the next installment, “Do Buried Treasures Exist?”

Read the first installment of Buried Treasure – Part One