On January 6, 2012, Judge Harold Kahn of the San Francisco Superior Court granted summary adjudication to Kasowitz client Visa Inc., striking counterclaims and affirmative defenses asserted by Beazley Insurance Company based on an exclusion to the definition of "damages" in its Technology, Media and Professional Liability insurance policies. The Court also denied Beazley's motion for judgment on the pleadings on the same issue. Visa is seeking coverage for liability and expenses it incurred in settling a class action lawsuit alleging violation of consent-to-record provisions of California's Invasion of Privacy Act and other similar state statutes.
Judge Kahn ruled that fixed statutory damages available under the Act and similar statutes are not excluded "fines, . . . sanctions or penalties" for insurance coverage purposes, even though plaintiffs need not show actual damages to state a claim under these statutes, because, as Visa argued, such damages represent a form of "statutory liquidated damages" designed to compensate plaintiffs for privacy violations. This case should have a significant precedential impact on the insurance industry and guard against baseless technical arguments regarding the scope of a policy. Kasowitz partners Robin L. Cohen, Elizabeth A. Sherwin, and David A. Thomas are leading the firm’s representation of Visa Inc.