by Dale Debber, Publisher
NOTE: It is a rule of journalism that one doesn’t write news stories about events when one is directly involved. This is not a news story – it is my personal commentary on a situation about which I think brokers should be aware. Applied Underwriters has gone to court in an attempt to stop the upcoming webcast we are doing about them.
Applied Underwriters is suing Workers’ Comp Executive, its publisher, and attorney Larry Lichtenegger to prevent us from providing you the knowledge that will come in our webcast, “Applied Underwriters’ EquityComp Program: Like it, Leave it, or Let it Be?” More importantly, they attempted and failed – and may still be attempting to obtain a Temporary Restraining Order (TRO) to prevent us from moving forward for you. You can sign up for the webcast here.
Here’s what happened:
Wednesday afternoon just before Thanksgiving late in the day at about 8 minutes before 4 PM Workers’ Comp Executive was served with a summons and notice of a lawsuit filed by Applied Underwriters. It set a hearing for today – Monday at 9 AM for a Federal Court to hear their request for Temporary Restraining Order preventing the airing of the webcast. So just to be clear they noticed us minutes before – or for many people after they’d left for the Thanksgiving holiday – for a hearing at the start of the first business day after the holiday.
The Federal Court Denied Applied
The Court was having none of what I can only call this holiday slice ‘em and serve ‘em strategy and denied out of hand their request for a restraining order. The Court cited “inadequate notice.” It looks to me like the Court saw the fundamental unfairness of Applied Underwriters’ attempt to prevent us from responding.
This attempt to shut us up – or in legal terms ‘prior restraint’ is based upon an alleged violation of Applied’s trademarks. Apparently in providing a webcast about Applied Underwriters EquityComp program we are supposed to say it’s about “Them Who are They” or “They Who Can’t Be Named.” Such a handle might sound rather like the lead villain Lord Voldemort, in the Harry Potter stories.
It seems to me that such a thing would be like selling coverage from a carrier whose name you can’t tell the client and about terms you can’t explain to them either. It is precisely those terms we are going to discuss in the webcast – things as our ad says that will better inform you with “strategies for selling, competing with, or helping a prospect out of EquityComp.”
As to terms of the coverage in the program I’m willing to bet that most brokers can’t explain all of the terms of the deal to prospective clients or existing clients who are being lured away by others. And that’s the reason for the webcast. The EquityComp program is complicated and in many cases Applied does not provide all of the terms and conditions to brokers and sometimes not even to insured’s until after coverage has been put in force.
Applied Underwriters used a unique approach to prior restraint. The Supreme Court held in the Pentagon Papers case that prior restraint of speech is against the 1st Amendment. Applied’s approach alleges that if we are mentioning its name or the name of its EquityComp program it’s a trademark violation. So it’s not speech they are complaining about – it’s the use of their name.
The lawsuit is the Berkshire Hathaway-affiliated carrier’s latest legal maneuver to limit coverage of the company’s growing number of disputes with current and former insured’s. The lawsuit alleges that employers and producers will be confused thinking the program “is sponsored or affiliated with Applied Underwriters.” Frankly, that made us laugh, given the subtitle.
We note that had they called and expressed any concern whatsoever that we would have been delighted to make it even more clear that we’re not affiliated with them. And in fact, we’ve added that to our landing page. They buy and use many of our products; they know us.
We Invited Them
Before being served with the lawsuit, Applied Underwriters was asked to clarify issues that might be raised, and even to participate in the webcast to present its side of any issues. There was no response to our request … except the lawsuit.
There are many disputes that are now pending in arbitration, the courts and before the California Department of Insurance. The disputes are between Applied and employers customers, and suits have been filed against several brokers who placed clients in the Equity Comp program.
The lawsuit filed by Applied against us asks the court to “preliminarily and permanently enjoin Defendants, and any person associated with Defendants, from (1) directly or indirectly using the name and mark Applied Underwriters or any name or mark confusingly similar thereto that includes that mark, (2) directly or indirectly using the mark EquityComp or any mark confusingly similar thereto that includes that mark, and (3) directly or indirectly using any other name or mark likely to dilute the distinctive quality of Plaintiff’s intellectual property or injury its business reputation.”
Applied Tried To Shut Down News Coverage Before
The lawsuit is not the carrier’s only attempt to stifle our coverage of its troubles. Applied’s lawyers asked for a Gag Order in its on-going litigation with former insured Shasta Linen Services that is now before an Administrative Law Judge at the California Department of Insurance. Applied filed the request after Workers’ Comp Executive published its initial report on the case brought by Shasta. Applied’s request sought to prevent attorneys and legal experts from discussing the case with the press. The motion was not granted. Our coverage continues.
Premium subscribers to the Workers’ Comp Executive have access to that and other stories about Berkshire Hathaway’s EquityComp Program Problems, and others detailing employers’ complaints about the program and the resulting litigation with Applied. Individual brokers too have been sued for placing clients in the EquityComp program (for a complete listing of articles click here).
Whether Applied continues its quest to shut us up or shut the webcast down and keep this knowledge from you, we will have to wait and find out. In the meantime, you can sign up for this important webcast here and, of course, we guarantee your money back if they kick our butt.
A copy of the lawsuit can is found in our Resources section, judge for yourself if you think their points have value. Click here to get it.
Applied Underwriters was once but is no longer an affiliate of Berkshire Hathaway. Applied’s management bought it. Berkshire Hathaway bears no responsibility for any of the events which have transpired involving Applied Underwriters’ or its subsidiaries including California Insurance Company.