Business Insurance in the Face of COVID: Pandemic Protection

By: Isabel Malmazada, Phillips Nizer Summer Associate

Since the beginning of the COVID-19 crisis in March, most states have decided to shutter non-essential businesses to stop the spread of the virus. Businesses were closed for months, leaving employers and employees with lost revenue and lost income. If the shuttering of a business was due to forces outside of the business owner’s control (as in the case of a government-ordered lockdown), may a business be covered by its insurance policy? As with so many legal questions, the answer is: it depends.

General liability insurance and property insurance do not cover forced closures due to pandemics or civil ordinances. However, if a business also had business interruption insurance or civil authority insurance, it may be protected. Business interruption insurance generally covers certain losses in the event the business suffers physical damage or loss that prevents it from operating. Businesses that had to close due to COVID-19 contamination concerns may be able to seek coverage for the period of time necessary to decontaminate the premises, dependent upon the terms of the specific policy. Civil authority coverage allows a business to recover losses in the event that a civil authority issues an order that closes the business or prevents normal daily operations. The period of coverage begins with the civil authority order that restricts access to the business and ends when the order is lifted or after a specified period of days has elapsed, whichever occurs first.

As always, the language of each policy is critical. Some policies explicitly cover pandemics. For example, the Wimbledon Tennis Tournament paid $1.9 million per year for a pandemic insurance policy since 2003 following the SARS outbreak. This entitled it to a $141 million payout following the cancellation of its tournament this year. However, many businesses are not so fortunate. Many insurers have taken the position that COVID-19 claims are not covered, even for businesses that had bought additional protection, either because there has been no physical damage to property or because the policy expressly excluded coverage for viral contamination, or because the policy did not expressly include viral contamination as a covered event.

Since the COVID-19 outbreak, members of Congress have requested insurance companies to cover COVID-related losses under business interruption policies. State legislators in New Jersey, New York, Ohio, Louisiana, and Pennsylvania have also proposed legislation that would require insurers to provide some coverage for losses due to COVID-19.  However, the National Association of Insurance Commissioners, comprised of insurance regulators from all fifty states and the District of Columbia, urged Congress not to take action that would require insurers to cover COVID-19 business interruption claims under policies that exclude coverage for communicable diseases. Legislation that tries to expand coverage obligations of insurance companies would likely be challenged as unconstitutional under the Contracts Clause of the Constitution, which prohibits states from enacting legislation that impairs contractual obligations.

Now is an optimal time for all businesses to review their insurance policies and determine what coverage is available and see if such policies expressly address losses caused by viruses.  The lawsuits have already started. A key issue being litigated is whether there is “property damage” from COVID-19 contamination and whether an insured “physical loss” includes the inability to use property safely.  The difficulty is that business interruption policies are generally written to cover obvious physical damage, like destruction from a natural disaster. Therefore, it is unclear if a virus will meet the threshold requirement of “property damage.” A business owner must establish physical damage to his or her property from a communicable disease or contamination. May this burden be met if the business is near a hospital, airport, or nursing home and the business owner shows that someone with COVID-19 was on his or her premises and thus “contaminated” the premises with said virus?

Insurance policies are contracts and are interpreted as such. Whether a particular policy will provide coverage will depend upon the actual language of the policy and the specific circumstances giving rise to the claim. 

Business Insurance in the Face of COVID: An Overview

By: Isabel Malmazada, Phillips Nizer Summer Associate

The COVID-19 pandemic has turned the business world on its head. Now more than ever, with the pandemic still at large and the civil unrest ongoing in the country, businesses and insurance companies will be reviewing their policies closely and determining if a business has insurance coverage, and the extent of such coverage. Commercial insurance is designed to protect businesses, both small and large, against events that may cause a loss of revenue. However, the extent of coverage and the willingness of an insurance company to cover a loss depends on the type policy issued and the details of that policy. It is therefore important to understand the different type of insurance policies that are available to business owners.

A business owner policy (“BOP”) is a general type of commercial policy targeted towards smaller and medium sized businesses. It combines both property and liability coverage under one policy. A BOP offers general liability insurance, which protects against liabilities such as customer injury and damage to property of others at physical locations. A BOP also covers commercial buildings and movable property owned by and used for the business itself.  If a business owner wants broader coverage, he or she will need to purchase additional policies.

One option is a commercial package policy (“CPP”). A CPP is a customized package comprised of two or more business insurance coverages bundled together. It allows a business owner greater flexibility in tailoring the coverage to his or her specific needs. A typical CPP will contain property and liability coverage similar to a BOP, but may also include automobile coverage, crime protection insurance, and inland marine coverage. Auto policies protect business vehicles and drivers; crime insurance covers property crimes such as theft, burglary, and robbery of money, securities, stock and fixtures by employees; and inland marine covers items in transit.

Each one of these specific add-ons will increase the total annual premium paid by the insured. Smaller businesses in particular may therefore be tempted to decline some of this additional coverage. However, as the pandemic and the recent civil disturbances have shown, during times of serious crisis, business owners need coverage for all types of situations. These include, for example, potential destruction to retail properties or to the business’s vehicles resulting from rioting or demonstrations.

Commercial insurance is often customized to meet the specific needs of large businesses. These businesses usually have their own risk management departments dedicated to evaluating the cost of insurance coverage in relation to analyses of the potential accidents and losses, recommending and implementing preventive measures, and devising plans to minimize costs and damage should a loss occur.

 The pandemic and the civil unrest are unforeseen circumstances, which affect many small businesses disproportionately compared to bigger businesses. Larger businesses have more capital and more comprehensive insurance policies that enable them to work through these difficult times more successfully.  Many small business owners have learned to their dismay that they were not adequately covered, which will inevitably prevent them from reopening, while many larger businesses will more easily absorb their huge revenue losses and survive.

Supreme Court Rules: Much Ado About Handbags

By: Candace R. Arrington, Phillips Nizer LLP Associate

“The question comes to us in a case involving handbag fasteners,” writes Justice Gorsuch in the introduction to the recent Supreme Court ruling in Romag Fasteners Inc. v. Fossil Inc. et al. 

On April 23, 2020, the Supreme Court resolved a long-standing split in opinion among federal circuit courts of appeal as to whether a finding of willfulness in a trademark infringement case is a prerequisite to an award of profits.  Simply put, the Court concluded that proof that a mark was infringed — even if the infringer’s conduct was inadvertent — is sufficient for the trademark owner to collect the profits earned from the infringing conduct. 

Romag produces magnetic snap fasteners commonly found on purses and leather goods.  Fossil makes a vast array of fashion accessories, ranging from handbags to watches.  Years prior, Romag and Fossil entered into a licensing agreement for the use of Romag’s fasteners on Fossil handbags.  Subsequently, Romag discovered third-party companies making Fossil products were using counterfeit Romag fasteners – and Fossil did nothing to prevent the use of the counterfeits.  Romag sued Fossil for trademark infringement under the Lanham Act, 15 USC §1125(a) for false designation and won.  Following Second Circuit precedent, the federal District Court of Connecticut refused to award Romag with Fossil’s profits because, although Fossil was held to have infringed, the court did not find that it did so willfully.  Romag appealed to the United States Court of Appeals for the Federal Circuit, which affirmed the District Court’s ruling.  The Supreme Court reversed the Federal Circuit, declaring that willful trademark infringement was not required for profit disgorgement.

In its decision, the Supreme Court said that it was strictly relying on the plain language of the Lanham Act.  The Lanham Act speaks explicitly about the required mental states of liable actors in a number of its provisions but not in §1125(a). 

Justice Gorsuch, in writing the unanimous decision, noted that he does not want to “read into statutes words that aren’t there,” reasoning that Congress did not mistakenly omit a willful requirement for a profit award under Lanham §1125(a) after repeatedly specifying such a test in other provisions of the Lanham Act. 

The most popular hot take on the Romag ruling is that it will lead to a spike in lawsuits.  Some commentators and law practitioners have expressed concerns that the Supreme Court did not provide a “bright line rule” as to the method by which to award damages.  For now, it remains uncertain whether the decision will increase profit awards because each legal determination is still very fact dependent.

It is easy to see how the ruling could lead to an increase in fashion disputes, especially those against parties identified as counterfeiters.  Hopefully, the threat of heightened damage awards will serve as deterrence to future infringements.

Will Fast Fashion Go Out Of Style?

Elizabeth Vulaj, Phillips Nizer Associate

Within the past few years, there has been a range of legal cases filed against fast fashion companies by high-end designers and luxury brands for claims such as trademark infringement and unfair competition. In an industry in which so many designers draw inspiration from their counterparts, many are asking: where is the legal line drawn between creativity and copying, and what legal mechanisms are available to protect designers’ works?

There are three primary aspects of the law that are used to protect an artist’s creative designs and works. Trademark law protects branding terms and symbols (such as Chanel’s intertwined C’s and Louis Vuitton’s LV logo) to help consumers and others identify the source of origin of goods and services. In recent years, creative professionals in the industry have sought to register other nonfunctional aspects of their designs, such as fabric patterns, through copyright law. Some fashion designers have also tried to obtain design patents for distinctive portions of products that are purely ornamental and nonfunctional.

It can sometimes be difficult to understand how best to protect your artistic creations, designs, and creative works. To gain a more in-depth understanding, please follow the link below to my recent article in the Santa Clara High Technology Law Journal relating to how intellectual property protection techniques have had an impact on fast fashion.

Is Social Distancing an “Act of God” in Germany?

Lena Fleischmann is a German law student and a Referendarin at Phillips Nizer LLP.

COVID-19, first detected in Wuhan, China, in December 2019, was, within just a few months, declared by both the WHO and CDC to be a global pandemic. Due to the closely interlinked supply-chain relationships of the global economy, the contractual obligations and expectations of German companies are directly affected, even in areas where the worst health effects of the disease have thankfully not occurred. Factory, warehouse and retail store closings, quarantine and social distancing measures, bottlenecks in the supply of materials and components, transport delays and failures—supply chains get out of joint, sales collapse, entire industries practically come to a standstill. Because the fashion business, due to its dependence on sell-through of seasonal consumer merchandise, depends more than most businesses on the timely delivery of product, it has been especially challenged. When doing business in Germany, it is all the more important to know your own rights and obligations in service and supply relationships and to develop a proactive strategy best to protect your company’s interests.

So-called force majeure clauses are often found in most international fashion-business contracts, and Germany is no exception. As companies doing business in the United States have typically experienced domestically in the application of the laws of the various states, there is no definition of force majeure in German law. In general terms, however, a force majeure event is an exceptional, unforeseeable (as to a specific event) circumstance that is beyond the control of the parties and that, at least temporarily, renders fulfillment of the specific contractual provisions impossible or impracticable. The clause effectively forgives performance failures during the period in which the obstacle stands in the way—as long as reasonable notice is given of an intention to claim force majeure. (Some versions of a force majeure clause limit how long such a period might be.) More specifically, according to the case law of German courts (which is instructive although not holding the power of binding precedent under German law), force majeure is an event that comes from outside the control of the parties, that has no operational connection to their respective performance and that, even with the utmost care, could not reasonably have been anticipated.

Once a court concludes that an event of force majeure has taken place, the rules of impossibility according to § 275 BGB (the German civil code) and the loss of the business basis according to § 313 BGB become applicable. Force majeure clauses often contain wording requiring the claimed obstacle to performance to be removed, if possible, with “reasonable economic effort.” As a rule, the court will seek to balance the potential for damage on either side in arriving at a decision. The burden of proof rests with the party claiming force majeure. To prevent potential claims by others who might in some way be affected in the supply chain, by lending practices or otherwise, making those third parties aware of the difficulties at an early stage is important—as is the need to take reasonably necessary precautionary measures to mitigate losses.

If a performance is impossible or unreasonable under the circumstances, depending on the party exercising a force majeure clause, a performance obligation will be excused or refusal to acceptant performance will be permitted. It is possible that, if later circumstances warrant it, a contract can be adjusted to take the force majeure event into account; in other cases, the contract can be terminated. Indeed, if performance has become impossible or unreasonable, withdrawal from the contract might be permitted. This means that deliverables (such as cash or goods) received in advance of the intended performance would have to be returned.

Whether delays in delivery or failures to deliver merchandise due to COVID-19 in a specific instance can be considered to have resulted from force majeure will depend on the contractual terms and the context in which the claim of force majeure arose. If epidemics, pandemics, diseases or quarantine measures are explicitly mentioned in the contractual clause as forms of recognized force majeure, the spread of the new coronavirus would quite likely be deemed such a circumstance. However, if the term force majeure is mentioned along with examples such as natural disasters, strikes, wars or terrorist conflicts (but not medical crises), the term force majeure would be interpreted in the light of the totality of the agreement and the surrounding circumstances (such as, as we have seen, a general halt of most garment retailing). Although no court decision has yet come down for a COVID-19 case, older judicial interpretations relating to the SARS virus epidemic in 2003 and a cholera outbreak can be referenced for guidance.

In short, existing interpretation of German law, and the legal method by which interpretation is made suggest that COVID-19 could be seen as force majeure in Germany in cases involving the fashion and accessories businesses. We will likely soon know whether and under what circumstances German courts will so rule.

§ 275 BGB applies if a performance has either become impossible or possible but unreasonable. As a result, there is no obligation to perform.
§ 313 BGB applies if the circumstances the contract was based on have changed and the parties can no longer be expected to adhere to the contract. As a result, the contract can either be adjusted or, if that is not feasible, terminated.

“Sole” Discretion is a Misnomer

Michael S. Fischman, Partner Phillips Nizer LLP

In many states, such as New York, a covenant of good faith and fair dealing is implied in every contract and prevents the trademark owner from (ab)using the right of sole discretion in a manner that would deny the manufacturer the benefits of the contract.  An example of the interplay of the covenant of good faith and “sole discretion” rights can be found in a 2017 case involving a dispute between Elie Tahari Ltd. (“Tahari”) and one of its licensees, Parigi Group Ltd. (“Parigi”).[1]  As reported in public filings, Tahari and Parigi were parties to a license agreement by which Parigi was to produce and sell a line of children’s clothing under the ELIE TAHARI trademark, commencing with the spring/summer 2015 season.  Pursuant to the detailed procedures of the license agreement, Tahari gave Parigi its approval, in writing, for styles that it accepted for the first collection and those styles were placed into production.

Thereafter, during a visit to the Parigi showroom, the head of Tahari and its chief designer, Elie Tahari, announced that he was revoking Tahari’s approval of each and every style that was previously approved by the Tahari personnel.  Tahari, the company, claimed that it had the right to force Parigi to pull the entire collection from the showroom (just as it was to be offered for sale to retailers) under a provision of the license agreement that allowed it to “revoke its approval of Licensed Products in the event that Licensor [Tahari] determines, in its sole discretion, that any such prior approved item has become outdated or the durability or design of such prior approved item no longer meets the highest standards of style, appearance, distinctiveness and quality as to conform to the standards and specifications established by Licensor” (emphasis suppled).  

The parties each claimed that the other breached the license agreement.  Parigi refused to produce further products under the Tahari license and risk losing its investment in yet another collection.  Tahari claimed that Parigi was obligated to continue under the license agreement, design new product and pay the minimum royalties regardless of whether Tahari would approve it unconditionally or not.  Tahari ultimately commenced an action against Parigi alleging that licensee’s repudiation of the agreement constituted a material breach and that it was owed $1,000,000 for royalty payments and guarantees.  Parigi filed its own claim alleging that Tahari materially breached the agreement and its duty of good faith and fair dealing. 

The panel of three arbitrators hearing the dispute concluded that, notwithstanding the broad approval rights of Tahari under the contract, including Tahari’s right in its “sole discretion” to revoke prior approval of product, “the Agreement’s fundamental purpose was entirely frustrated by Tahari’s conduct, and therefore … Parigi was entitled to terminate based on Tahari’s material breach of the Agreement.”[2]  The panel concluded that Tahari could not collect minimum royalties because it had prevented Parigi from making any sales against which royalties could be earned.  In other words, Tahari had breached the covenant of good faith and fair dealing that is implicit in every contract.

The covenant of good faith and fair dealing  “encompasses any promises which a reasonable person … would be justified in understanding was included in the parties’ agreement.” [3] A party breaches its duty of good faith and fair dealing when it “acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement.”[4]  Tahari breached the implied covenant of good faith and fair dealing by revoking its explicit approval of each and every product in an entire seasonal collection, all of which products it had approved months earlier. 

Although an extreme case in the suddenness and timing of Tahari’s announcement of its decision to revoke its earlier  approval and in the consequences of doing so, the Tahari-Parigi dispute underscores the importance of considering the impact of “sole discretion” decisions.  There is nothing really “sole” about a contract with another party.     

[1]           See In The Matter Of The Arbitration Of Certain Controversies Between Parigi Group Ltd. v. Elie Tahari, Ltd.  (656041/2017).  Parigi was represented in the matter by Alan Behr and Michael Fischman of Phillips Nizer LLP.

[2]               Id.

[3] ARB Upstate Commc’ns LLC v. R.J. Reuter, L.L.C., 93 A.D.3d 929, 934 (3d Dep’t 2012) (internal quotation marks omitted) (citation omitted).

[4] Id. (citation omitted).  See also, Jaffe v. Paramount Commc’ns, 222 A.D.2d 17, 22-23 (1st Dep’t 1996) (“[the] covenant of good faith and fair dealing … is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement.”); Legend Autorama, Ltd. v. Audi of Am., Inc., 100 A.D.3d 714, 716 (2d Dep’t 2012) (“The covenant embraces a pledge that ‘neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.’”)(quoting, Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389 (1995)); Richbell Info. Servs. v. Jupiter Partners, 309 A.D.2d 288, 302 (1st Dep’t 2003)(even an explicitly discretionary contract right may not be exercised in bad faith so as to frustrate the other party’s right to the benefit under the agreement).