Monthly Archives: July 2014

Text Messaging Is “Publication” That Violates “Right of Privacy,” but TCPA Exclusion Applies


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Which ad campaign do you think cost Papa John’s more – Payton Manning and the giveaway of one million pizzas, or its text messaging?  Payton Manning probably came cheaper.  In National Fire Ins. Co. of Pitt., Pa. v. Papa John’s Int’l, Inc., 2014 WL 2993825 (W.D. Ky. July 3, 2014), the Kentucky federal court held that the Distribution of Material in Violation of a Statute (“DMVS”) exclusion barred coverage for a class action asserting damages for the text messaging.

What makes this decision notable is the court’s deliberation over the meanings of “publication” and “right of privacy” in general liability policies were issues of first impression under Kentucky law.  The decision can have a wide effect beyond the TCPA context, including with cyber liability and data breaches.  Also of interest, the court rejected arguments that the DMVS exclusion rendered Coverage B illusory. Read More

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