Last month, we reported on the California Supreme Court’s decision in Yahoo, Inc. v. National Union Ins. Co. of Pittsburgh, PA involving coverage for claims under the Telephone Consumer Protection Act of 1991 (“TCPA”). The Court concluded: “A CGL insurance policy that provides coverage for “personal injury,” defined, in part, as “injury . . . arising out of . . . [o]ral or written publication, in any manner, of material that violates a person’s right of privacy,” can cover liability for violations of the right of seclusion if such coverage is consistent with the insured’s objectively reasonable expectations. Such a policy can also trigger the insurer’s duty to defend the insured against a claim that the insured violated the TCPA by sending unsolicited text messages that did not reveal any private or secret information, provided that the alleged TCPA violation amounts to a right-of seclusion violation under California law.” (Op’n., p. 23.)
Yesterday, December 6, 2022, relying upon the California Supreme Court’s Opinion, the Ninth Circuit reversed the dismissal of Yahoo!’s Complaint and remanded for the district court to answer the question of whether Yahoo! had an objectively reasonable expectation of coverage and any other issues that had not been decided before the appeal had been taken, including whether National Union’s exclusion for advertising injury bars coverage for the unsolicited text messages at issue.