Discover Financial Servs. LLC v. National Union Fire Insur. Co. of Pittsburgh, PA, No. 06 C 4359, 2007 WL 2893624 (N.D. Ill. Sep. 26, 2007) (Pallmeyer, J.).
Judge Pallmeyer granted summary judgment that defendant National Union Fire Insurance Co. (“National Union”) did not have a duty to defend plaintiff Discover Financial Services (“Discover”) pursuant to Discover’s insurance policy (the “Policy”). Discover argued that its alleged infringement of a telephone call processing system patent was advertising injury covered by the Policy because Discover advertised various services when its customers used Discover’s phone system. But the Court held that the alleged infringement did not arise solely from advertising activities, as is required by the Policy. While Discover advertised services to callers, the main purpose of its system was conducting financial business and the underlying patent complaint against Discover alleged infringement without identifying any Discover advertising as infringing. The advertising, therefore, could not be considered the sole cause of the alleged injury.
Practice tip: When responding to Local Rule 56.1 statements, make sure to support denials with admissible evidence. The parties in this case each made arguments that the Court disregarded because the opposing Rule 56.1 statements had not been refuted with evidence.