Daphne Zhang | June 9, 2020

Mutual Insurance Co. has urged a New York federal judge to toss a suit brought by Time Inc. demanding $6.9 million in indemnification of settlement and defense costs for class actions accusing the magazine company of deceptive marketing, saying that Time’s “intentional” unfair business practice is not covered by its policy.

Mutual claimed Monday that the global media liability policy it sold to Time only covers claims for “negligence,” but magazine subscribers have alleged that Time “knowingly” and “willfully” engaged in false advertising for automatic payment renewals, so Time’s practice was not “negligent” and Mutual has no obligation to cover its costs.

In the motion, Mutual said its policy specifically excludes coverage for unfair business practices and false advertising, both of which were alleged by Time’s readers. The insurer added that the consumers sought restitution of subscription fees as a result of Time’s allegedly false marketing, but that the policy does not pay for any loss in the form of “restitution.”

Time called Mutual’s move for summary judgment “an ambitious and unachievable goal” in its motion for partial summary judgment also filed Monday, claiming that a big part of the settlement payment constituted “loss” under its policy with Mutual. The magazine company demanded that “at a minimum” Mutual must pay for a significant part of its $4.98 million settlement expense.

Time and its subsidiary Synapse Group Inc. were sued by two California residents in May 2016, alleging that Time enrolled them in automatic subscription renewal without their consent and failed to inform them of the higher charges as required by California Law, according to court filings. The magazine readers told California state court that Time used Synapse as a marketing agent to indirectly trick them into annual renewals after the initial free or discounted offers.

The class representatives’ counsel filed another complaint against Synapse in June 2018, alleging that Synapse was aware of consumer complaints but still engaged in false marketing. Four months later, Time and the class representatives reached a settlement that required Synapse to pay $4.9 million.

Time first sought coverage from Mutual in June 2016, a month after it was first sued by the magazine subscribers. Mutual denied its claims a month later, saying the policy did not cover restitution and excludes coverage for unfair business practices, false advertising and disputes over fees.

Time sued the insurer in July 2018 seeking indemnification for its defense costs, and amended the complaint in 2019, after approval of the class action settlement, asking for coverage of more than $6.9 million from the two class actions.

In Monday’s motion, Mutual said it has no duty to reimburse Time and Synapse for the $4.98 million settlement payment and $2.18 million in defense costs since the consumers were only trying to recover “restitutionary damages.” The policy specifically stated that covered loss does not include restitution, it added.

Time countered on Monday that “irrespective of whether the policy definition of loss excludes coverage for restitution,” Mutual must still pay all of Time’s loss and defense costs in a legal proceeding as dictated by the policy, adding that the two class actions have caused it serious financial risk.

The media company said that under New York law, an insurer’s duty to defend is “exceedingly broad,” and Mutual should provide a defense whenever “the allegations of the underlying complaint suggest a reasonable possibility of coverage,” as its allegations already have.

Time also struck back at Mutual’s contention that neither action against Time and Synapse “contained a cause of action for negligence,” so it would not provide indemnification.

The consumers’ allegations trigger coverage since Mutual had agreed to pay legal proceeding expenses from “negligence, including any actual or alleged error, omission, misstatement” of the policyholder, Time argued.

The media company said that it was accused of failing to show offers in a “clear and conspicuous” manner as well as failing to provide an acknowledgment of subscription terms and cancellation policy. Those allegations are plainly “an alleged ‘error,’ ‘omission,’ or ‘misstatement,'” it claimed.

The magazine company added that Mutual’s arguments that the policy exclusions bar coverage do not apply. The policy exclusions are only relevant to “antitrust, price-fixing, and restraint of trade” claims, and the consumers never alleged such claims against Time, the media company said.

Additionally, “the false advertising exclusion applies only to intentional conduct” and “several of the complaints’ allegations do not allege that Time intentionally violated California law,” it said in the motion on Monday.

Mutual had argued that at the core of the consumers’ class suits are “allegations that Time and Synapse violated multiple consumer protection laws by engaging in unfair business practices,” and California enacted a law in 2006 specifically targeting marketing practice like Time’s ongoing charging of consumers’ payment cards without their explicit consent. So there is no question that the companies engaged in unfair business acts and false marketing, both of which were excluded under the policy, Mutual said.

Representatives from both parties did not immediately reply to requests for comment.

Mutual Insurance Co. is represented by William Joseph Brennan and Jacob Jonathan Palefski of  Kennedys CMK LLP.

Time and Synapse are represented by Jesse Bair and Timothy W. Burns of Burns Bowen Bair LLP and Jalina Joy Hudson of Perkins Coie LLP.

The case is Time Inc. v. Mutual Insurance Company Limited, case number 1:18-cv-06835, in the U.S. District Court for the Southern District of New York.

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