Free Complaint - District Court of California - California

Case 3:07-cv-04935-MHP

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Daniel D. Harshman, Esq. (SBN 177139) COZEN O'CONNOR 425 California Street, Suite 2400 San Francisco, California 94104 Telephone: 415.617.6100 Facsimile : 415.617.6101 Email: [email protected]
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Attorneys for Plaintiff ACE CAPITAL LTD on it own behalf and on behalf of Underwriting members of Syndicate 2488

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ACE CAPITAL LTD on it own behalf and on behalf, of Underwriting members of Syndicate 2488 Plaintiff, Case No.:

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13 VS. 14 STUBHUB, INC. 15 Defendant. 16 17 ) ) )

COMPLAINT FOR DECLARATORY JUDGMENT DEMAND FOR JURY TRIAL

COMPLAINT FOR DECLARATORY JUDGMENT 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, ACE, brings this action pursuant to 28 U.S.C. §2201 and §2202 for declaratory judgment to determine questions of an actual controversy concerning the respective rights and obligations of ACE and StubHub under the Technology, Internet and Media Professional Liability 1
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

NOW COMES the Plaintiff, ACE CAPITAL LTD on it own behalf and on behalf of Underwriting members of Syndicate 2488 ("ACE"), by its attorneys, Cozen O'Connor, and for its Complaint for Declaratory Judgment against the Defendant, STUBHUB, INC. ("StubHub"), alleges as follows: NATURE OF THE CLAIM

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Insurance Policy, Policy Number SF604690Z (the "Policy"), issued by ACE to StubHub. Pursuant 2 to the Policy, StubHub demanded that ACE provide it with a defense with respect to StubHub's 3 4 5 ACE has no duty to defend or other obligations under the Policy because the Policy's 6 7 for "damages" under the Policy that would trigger ACE's duty to defend. According to the clear 8 language in the Policy, the duty to defend is triggered when there is a "claim." The Policy defines 9 "claim" as a civil proceeding, arbitration, mediation, or written demand for "damages." "Damages" Insuring Agreement is not triggered by the underlying lawsuit, which does not constitute a "claim" involvement in an underlying litigation, NPS LLC, et al., v. StubHub, Inc., et al., Civil Action No.: 06-4874 (Commw. Ct. of Mass) (the "underlying lawsuit").

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means "a compensatory monetary judgment, award or settlement, other than ... disgorgement of 11 profits ... return or offset of fees, charges, or commissions for goods or services already provided ... 12 punitive or exemplary (unless insurable by law) [or] treble ... damages...." Finally, under the 13 Defense and Settlement of Claims provisions, the Policy states that ACE "have the right and duty to 14 defend, subject to the Limit of Liability, Exclusions, and other terms and conditions in this Policy, 15 any claim against [StubHub] seeking damages...."

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The only damages sought by the underlying claimants are a permanent injunction precluding 17 StubHub from selling New England Patriots football game tickets and the establishment of a 18 constructive trust containing the trebled amount of StubHub's past revenues generated by sales of 19 New England Patriots football game tickets. These claimed damages are not covered "damages" 20 under the Policy. As such, the underlying lawsuit is not a "claim" and there is no trigger of ACE's 21 duty to defend StubHub in the underlying litigation. 22 PARTIES 23 24 Lloyd's, and is authorized and registered by the Financial Services Authority of the United 25 Kingdom. ACE's principal place of business is in London, England. 26 27 in San Francisco, California. According to its website, www.stubhub.com, StubHub "enable fans to 28 2
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

1.

ACE is a United Kingdom corporation that operates through an insurance syndicate at

2.

StubHub is believed to be a Delaware corporation with its principal place of business

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buy and sell tickets at fair market value to a vast selection of sporting, concert, theater and other live 2 3 4 5 6 7 8 9 10 of $75,000, the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Venue is proper in this Court pursuant to 28 U.S.C. §1391. The named policyholder costs. 3. entertainment events, even those that are `sold out."' Further, StubHub "provides all fans the choice to buy or sell their tickets in a safe, convenient, and highly reliable environment." JURISDICTION, VENUE AND INTRA-DISTRICT ASSIGNMENT The Court has jurisdiction over this controversy pursuant to 28 U.S.C. § 1332 as there

is complete diversity of citizenship between the parties. ACE is a United Kingdom corporation with its principal place of business in London, England, and StubHub is a Delaware corporation with its principal place of business in San Francisco, California. Further, as StubHub already has incurred costs defending the underlying litigation which it has asked ACE to reimburse that are well in excess

under the Policy, StubHub, maintains its principal place of business in this District and a substantial part of the events giving rise to the claims at issue occurred in this District. 5. Intra-district assignment to the San Francisco Division of the Northern District of

California is proper under Local Rule 3-2(c) as this civil action arises in the county in which a substantial part of the events which give rise to this claim occurred, and because this civil action is not an excepted category to the Court's Assignment Plan. FACTS AND ALLEGATIONS COMMON TO ALL CLAIMS The Underlying Complaint 6. On November 21, 2006, the underlying claimants, NPS LLC ("NPS") and New

England Patriots, L.P. ("NEP"), commonly referred to as the "underlying claimants", filed suit in Massachusetts state court against StubHub, a former season ticket holder, a former member of the season ticket wait list, and John Does 1-50. A copy of the underlying complaint is attached hereto and marked as Plaintiff s Exhibit A. 7. NPS is believed to a Delaware limited liability company with its principal place of

business in Foxborough, Massachusetts. NPS is believed to own Gillette Stadium, the home field of 3
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

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the New England Patriots football team and is the issuer of premium seating tickets to Patriots home football games . NEP is believed to be a Delaware limited partnership with a principal place of business in FoxBorough , Massachusetts . Further, NEP is believed to be an issuer of general admission and season tickets to New England Patriots football games. 8. The underlying claimants allege that StubHub ' s unlawful resale of premium seating

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and season tickets to New England Patriot football games "sabotages [the Patriots '] efforts to provide a safe, fan-friendly, affordable environment by failing to disclose material information" in contravention to Massachusetts law. (See Ex . A, paragraphs 31-48 ). Further, underlying claimants allege that StubHub ' s conduct violates or induces others to violate Massachusetts Anti-Scalping Law through the unlicensed resale of these tickets at prices that grossly exceed the face value of the tickets. The underlying claimants assert that StubHub ' s illegal ticket resale activity causes harm to consumers and undermines the Patriots' goodwill with their fans . (See Ex. A, paragraphs 49-58).

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9.

Based on these allegations , the underlying claimants assert the following causes of

action against StubHub : ( 1) intentional interference with advantageous relations (including a claim that StubHub trafficked in fraudulent sales ); (2) misappropriation of name under Massachusetts

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statute ; and (3 ) unfair trade practices act violations. (See Ex A, paragraphs 59-77). NPS also asserts several causes of action against the two individual defendants and 50 unnamed Patriots season ticket

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holders (hereafter "the season ticket holders") allegedly engaged in the resale of Patriots tickets through StubHub . (See Ex A, paragraphs 78-94 ). Finally, the underlying claimants assert a claim for the establishment of a constructive trust against all defendants . (See Ex A, paragraphs 95-99). 10. The Patriots seek only two elements of damages against StubHub: (1) a permanent

injunction barring StubHub from " the illegal and unauthorized resale of Patriots tickets" and (2) the establishment of "a constructive trust containing three times the revenues defendants improperly

24 received and any amount by which defendants were unjustly enriched ." (See Ex A, page 18, the 25 26 27 28 4
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

WHEREFORE clause). The Policy

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11.

ACE issued policy number SF604690Z to StubHub for the period effective May 1,

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2006 to May 1, 2007. The Limit of Liability for this Policy is $3,000,000 in the aggregate including Claims Expenses. The deductible is $75,000 for each claim including Claims Expenses. A copy of the Policy is attached hereto and marked as Plaintiff's Exhibit B. 12. The Policy is a "claims made and notified" policy that limits liability only to those

claims that are first made and notified to ACE during the policy period or any extended reporting period, arising from any circumstances which took place on or after any retroactive date specified in the schedule and before the expiry date of the policy period. The Insuring Agreement (Section 1) of the Policy provides that: We shall pay on your behalf all damages and claims expenses within the Limit of Liability in excess of your Deductible which you become legally obliged to pay as a result of any claim arising from any wrongful act first made against you and notified by you to us in writing during the policy period or any Extended Reporting Period. 13. The Policy wordings at the core of this coverage dispute are the Insuring Agreement

14 quoted above, including the definitions of "claim" and "damages." The definitions of "claim" and 15 "damages" are provided in Section III. Definitions , paragraphs 2 and 6 , respectively, which state in 16 relevant part as follows: 17 18 19 20 21 22 23 24 25 26 27 28 5
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

Claim means (a) a civil proceeding for damages commenced by the filing of a complaint or similar pleading; or (b) an arbitration or mediation proceeding in which damages are sought; or (c) a written demand for damages; or (d) notice by a third party by you of circumstances that could reasonably be expected to result in any of the foregoing; Damages means a compensatory monetary judgment, award or settlement, other than; (a) your future royalties or future profits, restitution, disgorgement of profits, or the costs of complying with orders granting injunctive relief; (b) return or offset of fees, charges, or commissions for goods or services already provided or contracted to be provided; (c) punitive, exemplary (unless insurable by law), treble or other damages that are assessed in part to punish the defendant or to deter others;

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Under the definitions contained in the Policy and quoted above, in order for a "claim"

to be made under the Policy, a claimant must seek "damages" of a kind that fall within the Policy's specific definition of the "damages" that are included within the scope of the Policy's coverage grant. 15. In addition to the above Policy language, Section II. Defense and Settlement of

Claims, sets forth ACE's rights and duties in the event of a "claim." Section II provides as follows: (a) It is our duty to defend a claim against you even if such claim is groundless or fraudulent however our right and duty to defend you under this Policy ends when the applicable Limit of Liability has been exhausted by payments of damages or claims expenses. (b) We have the right and duty to defend, subject to the Limit of Liability, Exclusions, and other terms and conditions in this Policy, any claim against you seeking damages including injunctive or other non-monetary relief first made against you and notified to us during the policy period or any Extended Reporting Period, for any wrongful act first committed by you on or after any retroactive date and before the end of the policy period. (c) You may not make any payment (except at your own cost), assume any obligation, or incur any expense in relation to a claim without our written consent, provided that such consent may not be unreasonably withheld. Only reasonable and necessary costs will be paid. (d) We have the right to select and appoint defense counsel to defend any claim notified under this Policy. If you have appointed defense counsel, at our request you shall instruct them to turn over all their relevant files, materials and work product and cooperate with counsel who we select and appoint as defense counsel. (e) We have the right to investigate and settle any claim in the manner and to the extent that we believe is proper unless the total cost of damages and claims expenses is less than the amount remaining within your Deductible. If you refuse to consent to any settlement or compromise recommended by us which is also acceptable to the claimant and then elect to contest the claim, our liability for any damages and claims expenses shall not exceed the amount for which the claim could have been settled, less the remaining Deductible, plus the claims expenses incurred up to the time of such refusal, or the applicable Limit of Liability, whichever is less, and we shall have the right to withdraw from further defense by tendering control of said defense to you.

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The Choice of Law provision in the Policy (Section V. General Conditions,

subsection H) provides as follows: "For all purposes, this Policy shall be interpreted according to 28 6
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the law in Illinois which conflict of law principles shall not be used to adopt the law of other states i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 18. 16 parties agreed to pursue mediation. However, the parties agreed that all other terms in the Dispute 17 Resolution provision remain in effect. 18 Notice of the Claim and ACE's Reservation of Rights 19 19. 20 20. 21 issued a reservation of rights letter to StubHub. This correspondence advised StubHub that ACE's 22 investigation of this situation is continuing, that ACE generally reserves all of its rights, remedies, 23 and defenses, and that there are certain aspects of this matter that may not be covered under the 24 Policy. A copy of ACE's January 12, 2007 coverage correspondence is attached hereto and marked 25 as Plaintiff's Exhibit C. 26 21. 27 coverage correspondence. ACE advised StubHub that the Policy does not provide coverage for the 28 7
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the United States." 17. Finally, the Policy contains a Dispute Resolution provision (Section V. General

Conditions, subsection N). This provision provides as follows: The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Policy promptly by negotiation. If the dispute has not been resolved by negotiation within forty-five (45) days of the disputing party's notice, either party may demand that the dispute be submitted for non-binding resolution under the then current CPR Model Mini-Trial Procedures in effect on the date of this agreement. Unless otherwise agreed, the parties will select a mini-trial neutral advisor from the CPR Panels of Neutrals and shall notify CPR and request CPR to initiate the selection process. All applicable statutes of limitations and defenses based upon the passage of time shall be tolled while the procedures specified herein are pending. The parties will take such action, if any, required to effectuate such tolling. The parties agree that no suit will be filed by either party against the other party seeking resolution of any dispute arising out of or relating to this Policy until the parties have (1) attempted to negotiate a resolution, (2) completed the non-binding CPR Mini-Trial proceeding through decision, and (3) thirty days have elapsed since the conclusion of the non-binding CPR Mini-Trial proceeding

Instead of proceeding with the CPR Mini-Trial proceedings set forth in the Policy, the

StubHub provided notice of this lawsuit to ACE on November 28, 2006. Following ACE's initial investigation of this matter, on January 12, 2007, ACE

After further investigation and analysis, on May 3, 2007, ACE issued supplemental

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underlying claimants' lawsuit because the underlying complaint does not allege a "claim" or 2 3 4 5 6 7 8 9 10 and prior telephone and email communications with StubHub until the coverage issues are resolved. II ACE informed StubHub that unless it were to withdraw this claim, ACE would invoke the Policy's 12 dispute resolution provision, set forth in Section N of the Policy. ACE also reserved its right to 13 recoup defense costs if it ultimately is determined that ACE had no duty to defend or indemnify 14 15 16 17 copy of StubHub's response to ACE's coverage position is attached hereto and marked as Plaintiff's 18 19 20 "claim" or circumstances that could give rise to a "claim" since each cause of action asserted against 21 22 asserted that ACE withdrew its defense and denied coverage and that StubHub was prejudiced by 23 24 25 26 2007 reply correspondence is attached hereto and marked as Plaintiff s Exhibit F. 27 28 8
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

"damages" as those terms are defined in the Policy, since the underlying claimants only seek uncovered damages, or permanent injunctive relief and the establishment of a constructive trust containing three times the amount of StubHub's revenues. Therefore, ACE informed StubHub that ACE's right and duty to defend under the Policy was not triggered by the underlying lawsuit. A copy of ACE's May 3, 2007 supplemental coverage correspondence is attached hereto and marked as Plaintiff s Exhibit D. 22. Nevertheless, in good faith, ACE stated that it would continue to pay StubHub's

reasonable defense costs in accordance with the Policy, ACE's Litigation Management Guidelines,

StubHub. (See Ex D). StubHub ' s Response to ACE' s Coverage Position 23. On June 14, 2007, StubHub responded and objected to ACE's coverage position. A

Exhibit E. 24. In its June 14, 2007 correspondence, StubHub argued that this matter constitutes a

StubHub in the underlying complaint "potentially seeks the recovery of damages." StubHub also

this alleged conduct. (See Ex E). ACE's Reply to StubHub's Response/Objections 25. On June 20, 2007, ACE replied to StubHub's response. A copy of ACE's June 20,

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26. 2 3 4 5 6 7 8 9 10

In its June 20, 2007 correspondence, ACE restated its coverage position that the

underlying complaint against StubHub does not allege a "claim" or "damages" as those terms are defined in the Policy. Regarding StubHub's assertion that the underlying complaint "potentially seeks the recovery of damages," ACE advised that StubHub failed to recognize that the term "damages" has a specific meaning under the Policy, and that based on the express Policy definition, the underlying complaint fails to seek any damages that potentially could fall within the Policy's coverage grant. Further, ACE stated that not only is the case law relied on by StubHub factually

distinguishable, but the cases cited by StubHub are inapplicable because they do not interpret or otherwise apply the specific and unique Policy wording at issue here, which has never been interpreted by a court of law. As for StubHub's comments concerning ACE's alleged conduct, ACE

11 reminded StubHub that it has acted in good faith throughout this dispute, and has agreed to continue 12 defending StubHub pending resolution of the coverage dispute. ACE also disputed StubHub's 13 assertion that StubHub somehow has been prejudiced by ACE's conduct, since StubHub has not 14 been denied effective counsel and has never been asked by ACE to alter or forego any of its defense 15 16 17 18 Illinois, pursuant to the terms of the Policy and agreement of ACE and StubHub. The mediation was 19 unsuccessful, and did not result in a settlement of the coverage dispute between the parties. 20 21 dispute resolution proceedings. During this time period, the parties made additional attempts to 22 resolve this dispute. This 30 day "cooling off' period expired on September 24, 2007. 23 Unable to reach resolution, ACE now brings this action for a declaration of rights under the Policy. 24 DECLARATORY RELIEF 25 CLAIM OUTSIDE OF GRANT OF COVERAGE 26 27 claim for Declaratory Relief as though fully set forth herein. 28 9
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

or settlement strategies. (See Ex F). Parties Comply with the Policy ' s Dispute Resolution Provisions 27. On August 24, 2007, a non-binding mediation proceeding was conducted in Chicago,

28.

The Policy calls for a 30 day "cooling off' period following the conclusion of the

29.

ACE restates and re-alleges Paragraphs 1 through 29 as and for its paragraph 30 of its

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30. 2 3 4

StubHub seeks professional liability insurance coverage from ACE as provided by

Policy Number SF604690Z with regard to StubHub's involvement in the underlying lawsuit. 31. The Policy's Insuring Agreement provides in relevant part that ACE shall pay

StubHub all "damages" and "claims expenses" within the Limit of Liability in excess of StubHub's 5 6 any "wrongful act" first made against StubHub and notified to ACE during the policy period. Thus, 7 8 9 10 demand for "damages." Thus, under the Policy's definition of "claim," no "claim" exists unless the II underlying claimant seeks "damages" as specifically defined in the Policy. 12 13 settlement, other than ... disgorgement of profits ... return or offset of fees, charges, or commissions 14 for goods or services already provided ... punitive or exemplary (unless insurable by law) [or] treble 15 16 17 (1) a permanent injunction; and (2) the establishment of a constructive trust containing the trebled 18 amount of StubHub's past revenues. Thus, the damages claimed in the underlying lawsuit do not fall 19 within the scope of specifically defined "damages" for which the Policy grants coverage. 20 35. 21 sought by the underlying claimants expressly is not included within the specifically defined 22 "damages" for which the Policy grants coverage, because the Policy clearly provides that "damages" 23 do not include any restitution, disgorgement of profits, the return of fees, charges, or commissions, 24 and/or punitive, exemplary, or treble damages. 25 26 within the specifically defined "damages" for which the Policy grants coverage, because injunctive 27 relief does not constitute a "compensatory monetary judgment, award or settlement." 28 10
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

deductible, which StubHub becomes legally obligated to pay as a result of any "claim" arising from

to fall within the scope of the Policy's coverage grant, a "claim" for "damages" as those terms are defined in the Policy, must be presented. 32. The Policy defines "claim" as a civil proceeding, arbitration, mediation, or written

33.

The Policy defines "damages" as "a compensatory monetary judgment, award or

... damages...." 34. The only damages sought in the underlying lawsuit by the underlying claimants are:

The constructive trust containing the trebled amount of StubHub's past revenues

36.

The injunctive relief sought by the underlying claimants similarly is not included

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Because neither the injunctive relief nor the constructive trust sought by the

underlying claimants constitute the specifically defined "damages" for which the Policy grants coverage, the underlying lawsuit does not constitute a "claim " for "damages" that would trigger ACE's duty to defend the underlying lawsuit. 38. Accordingly, ACE requests a declaration of its rights and obligations under the

Policy, and specifically requests a determination that it owes no duty to defend or indemnify StubHub in connection with the underlying lawsuit , because the underlying lawsuit does not constitute a "claim" for "damages", and as such , the Policy is not obligated to respond. WHEREFORE, the Plaintiff, ACE CAPITAL LTD on it own behalf and on behalf of Underwriting members of syndicate 2488, requests this Court to enter an Order granting the

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following relief: A. Declaring the respective rights and obligations , if any, of the parties under the Policy

at issue; B. Declaring that ACE does not have any obligation to defend or indemnify StubHub

under the Policy with regard to the underlying lawsuit; 16 17 18 19 resolution of this coverage dispute; and 20 21 Dated: September 41 2007 22 COZEN O'CONNOR 23 24 25 26 27 28 11
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL

C.

Awarding all costs and disbursements of this action, including reasonable attorney's

fees incurred by ACE; D. Ordering StubHub to reimburse ACE for all defense costs paid to StubHub pending

E.

Awarding any and all other relief this Court deems appropriate and just. Respectfully submitted,

Daniel D. Harshman Counsel for ACE CAPITAL LTD on it own behalf and on behalf of Underwriting members of Syndicate 2488

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DEMAND FOR JURY TRIAL 2 ACE Capital Limited on its own behalf and on behalf of Underwriting members of Synidcate 2488 demands a trial by jury on all issues so triable. Dated : September, 2007 Respectfully submitted, COZEN O'CONNOR

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Daniel D . Harshman Counsel for ACE CAPITAL LTD on it own behalf and on behalf of Underwriting members of Syndicate 2488

Of Counsel: Lori S . Nugent (Pro Hac Vice Application to be Filed Josh M . Kantrow (Pro Hac Vice Application to be Filed Beth A. Stroup (Pro Hac Vice Application to be Filed COZEN O ' CONNOR 222 South Riverside Plaza , Suite 1500 Chicago , Illinois 60606 Telephone : 312.3 82.3100 Facsimile : 312.3 82.8910 Emails: LNugent@cozen. com, JKantrow @cozen.com and BStroupgcozen.com

S AN_FRANCISCO\42643\1 195933.000

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