warning me please the court counsel my name is barry breslow counsel for the plaintiff appellate response time inc i'm with the reno from robertson by the state you sharp and low only my second time before this body i appreciate the opportunity to preach present arguments to you today where here essentially to address two issues the first issue succinctly stated whether there was coverage the second issue even in the absence of coverage under nevada law may response time proceed with a claim for bad faith against hartford based on his failure to properly and fully investigate  of course this body approaches the review with fresh eyes because this is a don't know review of competing summary judgment motions below nevada law is somewhat vague with respect to advertising injury matters and is this court know this and as federal courts sitting in nevada have done before the data will often look to sister state jurisdictions for a well crafted well thought out  this case we feel nevada would look to california for the duties of an insurer ensure her to its insureds following the test and the and the principle set forth in and from electronics test of the district c the answer what's your response to that certainly i believe the what the court found in the order was applying either the four corners test like texas for example by comparing the policy to the complaint or applying the injury no matter what the court that's exactly right the court found that but we're here to explain why that that was an error and this court should find otherwise we're all familiar with the fact that in order for a response time to prevail on the first issue that of coverage we need to show three things we need to show advertising activity we need to show allegations that raise the potential for liability arising out of one of the enumerated offenses in this case misappropriation of an advertising idea or misappropriation of the style of doing business and then we need to show the third prong which is a nexus or connection between the harm and the actual advertising activity absolutely your honor the second element of allegations that even raise the potential we don't have to show anything conclusively of course just the potential for liability arising out of where's the advertising idea that still on it  doing response time because we had taken a person who had knowledge of not just who the customers were but also the contact person with the customers their particular needs their particular service requirements sterling commerce is plans to address analyze and fix those needs and also clearly conversely his approach to generate more business and to solicit continued business that looks a lot more life cen than it does with frogs which or simply fresh in terms of attempting to take something really specially related to manufacture or manufacturing or production it looks a lot more like efforts to gain new customers issues that in a fight in sterling's complaint those issues were identified in sterling's complaint absolutely his complaint is i understand it was based upon stealing trade secrets that's right and in the factual allegation your honor before the actual playing for really for stealing trade secrets they listed these particular concerns that i just identified but there were three other places in the record where sterling commerce more clearly articulated what it was that they were concerned that response time had allegedly taken the second place was in its second supplemental disclosure statements that were filed with the court in texas and in experience we get a dense cloud where part of your honor where was  it was filed in the texas action between sterling commerce and response time the second supplemental disclosure statement articulated again that what sterling commerce was concerned had been taken wasn't just the person wasn't just customer lists but w taxing trade secrets can be advertising if you find as you should that what is really being taken here is and the definition has been set forth in the green machine case third circuit's two thousand two wrongful taking of a company's plans to solicit business and gain new customers that's the definition of misappropriation of an advertising idea and that is the definition your honor that hartford have in the definition for misappropriation of style and style of doing business it's the wrongful taking of the plan to interact with customers and get their business i realize that conceptually it's difficult to to use the term advertising and want to know where's the billboard where's the television piece where's the name or but that's not how advertising injury is the find under the cases that construe policies like this advertising injury essentially the wrongful taking of another company's plans to interact with its customers and gain their business it is not it is not and centex know that the distinction with simply fresh and floss which noted the distinction and winkle boss and noted the distinction it is not taking that idea from another in turning it into a manufacturing or design proposition we didn't spend a person from  plans how to make a vector so worked and then took it and went to response times office and turned it into vector response and branded it as such and put it in the marketplace clearly that's not covered clearly the harm the stealing of the idea and how to manufacture or design occurs when we steal it but when we put it in the marketplace and brand it as our own all we're doing is taking a product and advertising that we've stolen you know commerce use the answer is because the allegation is not is not that we still better sort and still director source the allegation is not that we still vector sort took it did some reverse engineering designed it i don't believe that this body needs to be unduly concerned that you're opening pandora's box the panel in the not in this time takes systems case an affirmation on somewhat narrower grounds then the federal district court did th circumstances not translate into perforated paper which if that employee knew how to build a better johnson rod and then we took him and we built a better one and sold it no coverage because the advertising they are merely exposes the harm of taking  position we think it's well thought out and we think it's consistent with centex is that there is a distinction not every person who is allegedly taken or style when wrongfully is going to be used to engage  advertising idea have to be before there's coverage in your view in other words part of your claim is that vi understanding the marketing plan of the former employer before it falls within the coverage well i thought it has to do is it has to first of all be an advertising idea in an advertising idea is the way that a company approaches the marketplace how it puts its products and goods and advertising idea would have to consist of how am i going to sell this product to the world this case is about pirating employees it is not about and i ask you a question this been bothering me and i'll come back to later as to whether or not i think it's material but the point has been made that there is marketing material or strategy that was stolen from sterling  response time and then response time really takes to see the target person and faxes without advertising the wares response time if if counsel correct that marketing materials history and or strategy has also been stolen wouldn't this be evidence that that's in fact what happened because response time then faxed out humphries cd to all of the potential customers you know your honor and that's where i'd like to take you back i was answer question no it does not first of all there was no advertisement here no work there there was no advertisement here although judgment kid then stated in his order that the only potential for advertising activity was the promotion of humphrey to national city bank he did not make a definitive ruling that an advertisement or an advertising activity occurred here but what if you assume for the sake of  that response time pirated and stolen employee and did that as the panel has pointed out mr humphrey had intimate knowledge with the coding with the computer science behind e read the complaint and re read it and i don't think it's a complaint in marketing materials which strategy is to complain about misuse of confidential information into a case and i used  practice one hundred years ago and when these cases came up you always looked at the complaint hers to see if there was coverage and i'm i'm struck that your argument is fairly persuasive i thought i looked at this complaint i wouldn't say it's for advertising in an injury but you says that the complaint is no no say they say we'll give you that one that the complaint doesn't show coverage your adversary's has the complaint is now enough that you can look elsewhere to find out about advertising injury and then during his argument indicated why he thought that was so and where it was what's your response to that can you look outside the complaint itself under nevada law and if so what about the argument counsel makes no regard for st these deposition testimony offered in the underlying stilling that occasion hundreds of pages and attached to that position testimony were numerous documents obviously missing from any of that was the advertisement but we're going to assume for the work you know that's that's a pretty basic idea and now he's working for these other guys and they say ok well he is not working for us and he's paid you can get if you want his services you  here and it's not  first of all i just talk about advertising in three coverage it's a specific and limited form of insurance that is intended to cover tort liability arising out of the course of the insurance actual advertising but the focus of the advertising law go to insurance on the insurance take the court back and let's look at obviously you can affirm on any grounds that you wish in any any grounds that supported by the record there was no advertising here again it's missing and we can see them for the sake of the argument we've just  product which was in direct competition to emphasise didn't happen here no evidence in the record whatsoever and also i would like to just quickly talk about anthem in anthem more and will of law is that the determination of whether the duty to defend is usually made in the first dance by taking the complaint and align it next to the policy that was done here and more was done again and again and there was no advertising and there was no advertising misappropriation advertising idea ok i would like to talk about the causation requirement let's assume that there was an advertisement didn't cause the damages complained of by sterling commerce it did not on the record is that not only did response time know of national city bank before they stole humphrey they in fact had communicated with national city bank the numerous facsimiles that have been produced as part of the and therefore i would ask you not to apply him meet me briefly conclude your honor thank you we would submit that this is the allegation here if you look at the complaint if you look at the second supplemental disclosure statements if you look at the testimony of the vice president of sterling commerce and if you look at sterling commerce his appeal brief in texas clearly allege harm that looks more like attempting to exploit knowledge to interact with and gain customers does manufacturing and design the case here is almost on all fours with centex centex was controlling legal precedent at the time hartford was presented with this claim and we would ask you if you find that the coverage should have existed and allow the bad faith claim to go forward even if you do not find coverage existed thank you very much