duty to defend the apollo action under the policy issue but more specifically the question before this court is whether there is a duty to the fun of the claims of that action under new york's deceptive practices act before there are basically three grounds of my brace that i set forth why there is no duty to the fans but before i talk about those three grounds i want to discuss what's not of history before this court first the district court found there was no advertising injury coverage for the it's our position that interpret ing what disparagement means for this case you must look at new york law as to what new york subsequently is disparagement new york talks about injurious false hopes there is no injurious false alleged in the apollo action i have the court take a look at paragraph eighty five eighty six of the complaint which are the fundamental basis of what western argument is but those paragraphs don't use the word false they merely indicate that western communicated with banks involved in the production financing for the apollo show for the purpose of informing them that ownership of rights in the trademarks relating to the show are consistent there's no allegation that that was a false statement and  it was a true statement paragraph eighty six says the intended result of westerns filings and communications with the banks was to place a cloud of title on the trademarks according to the pop relating to the apollo show again there's no allegation that that was false and for that reason there's no disparagement alleged there or anywhere else in the complaint and so worse we have not come in the ensuring provision of the subject policy even if we did come with  entertainment business in particular trademarks trademark infringement the district court found that many of the claims below war excluded by this exclusion but for some reason did not hold the same with this picket one client it's our position based on cases out of the sixth circuit and the fourth circuit that the trademark exclusion here plies because all the claims made by apollo are based on trademark infringement and  apollo action arose in the second circuit the second circuit has a specific requirement a trademark infringement case that in order to recover lost profits one must allege bad faith and that's exactly  claims of our new york hasn't not adopted the notice prejudice rule the case the claim in this case was fourteen months which was given those fourteen months after they received and so the real question for this notice precious rule for various reasons including the fact that they believe that will lead to prompt resolution of claims and wolf protect new york claimants here you're looking at a new york climate appollo bringing a state law claim and that coverage should be barred course there were several instances of relationship to california law here right when it entered into the california undoubtably we are dealing with a california insured and that the policy as far as i know was delivered in california but clearly all the other factors in terms of where the claim rose who the thing that was where the claim was litigated what the claim was all about had to do with conduct that took place in new york and new york has a right to protect its clients and apollo and other people who are in new york and people who come into new york such as western should be fairly warned that they are subject to new york  and if you were to adopt a western position every other just every state anybody from whatever state you go into new york and that law would apply for whether or not another's prejudice rule apply in that particular case if this was a new york insurance company and we were in new may please accord jeffrey raskin for western international syndication good morning and welcome the morning you can take the apollo lawsuit scratch off the words new york deceptive practices act cause of action and replace that with the not based upon the title of the cause of action that's in the loft california for the last forty years since grey vs or it first announced the role it's been a lot of new york for at least twenty five years in the reader and think case if you look at the in any insurance policy certainly not under a personal injury provision but disparagement is insurance policies do not cover causes of action they cover offenses or they cover bodily injury or they cover property damage the allegations in the in the apollo complaint were that western made a lot of false statements they made false statements to the banks about the contested right to ownership of the polish show they made false statements allegedly to an industry tra journal that western was the distributor of the apollo show and that was not true they allegedly made false statements to t v stations saying that the apollo show would not be broadcast but instead lester's program would be broadcast  we look at the allegations in the complaint now the legal argument that might flow from those allegations this was recognized in this court in the last year in pant pacific versus golf is the same defendant here today is up fo certain remedy is insurable we must look beyond the labels of the assorted claims or remedies we don't look at the label that was repeated again by this court also my rule twenty j statement united western growers versus twin city on the isolated allegations in the complaint but you look at the complaint as a whole this is also important with respect to what mr trigger also said about whether apollo could have recovered or claims based upon statements made outside of the state of new york or whether it had to allege bad faith or whether it had to prove certain elements of its case to when that's not relevant to the duty to defend the travelers policy like all c policies require a defense even against false fraudulent or groundless suits so whether or not apollo could have recovered based on its elaborate theories that it came up with for purposes of adversarial purposes is it important we look at what the allegations that they say it's related to try to market problems is that correct no there were a lot of different allegations some of which were trademark and we've never contended that the trademark claims are covered under this  made allegations concerning trademark they claim contracts were breached they claim duties were breached but they also allege ledged a number of allegations that western did a bunch of things by way of verbal communications whether to banks referring to is the apple case that he cited in his brief i think it's industrial indemnity versus apple the problem with that argument though is that in that case all of the allegations were trademark allegations the tort claims were related to apple's alleged policy and i think whether there's a conflict between new york and california on this issue is related to the comparative impairment analysis that actually must be done we don't just look at who's got more interests or who's got a greater interest if you look at the new york cases only notice the concern is fraud and collusion and the cases that have found a forfeiture of benefits based on late notice involve things such as judgments entered before tender default judgment center before tender settlements entered before tender the situation presents the possibility of fraud and collusion here tender w and there was a lot of wrangling over a counterclaim that was wrangling over arbitration the meat of the case however did not start until after ten it was made to travelers they were asked to defend they were asked to get involved in the case were asked to participate in settlement conferences none of the depositions that had been the case before travers was tendered basically the case went into litigation mode after travelers was tender so even if the new york courts would possibly find a situations you look at the comparative impairment ties between california and new york california has required prejudice for late notice since the one nine hundred thirty s we don't think that in this situation the new york court would find a fo because gold still had the opportunity to defend the case and settle the case in the problems with fraud and collusion were not present and you look at the policy sure it is in california properties are insured in california just to point your honor first there's a lot of discussion about false statements but i think the court needs to read the complaint for itself to see there aren't no allegations of false statements made by apollo on the word false is just not there it's also important to note that it's not just simply false statements that trigger disparagement has to be false statements about apollos product it has to be that you know something false about the product just because western made false statement