Thomas M. Spitaletto

Anjali Das (Partner-Chicago, IL), Brian Myers (Of Counsel-Washington, DC) and Tommy Spitaletto (Partner-Dallas, TX) obtained dismissal of a data breach class action filed against a mental health care provider in the Western District of Texas. The lawsuit arose out of a cyber-attack that involved personal information that included sensitive information such as health information and Social Security numbers. In support of our client’s motion to dismiss, Wilson Elser argued that the plaintiff lacked Article III standing to sue because she failed to allege any injury-in-fact in the form of identity theft fraud, or misappropriation as a result of the breach. Instead, the plaintiff alleged that her harm consisted of (1) lost time and out-of-pocket expenses spent dealing with the data breach; (2) diminished value of her personal, health and financial information; (3) anxiety; (4) violation of privacy rights; (5) loss of the benefit of the bargain made with our client and overpayment for services intended to include data security; and (6) increased risk of future fraud and identity theft. The District Court agreed with Wilson Elser’s position that the plaintiff lacked standing to bring suit and dismissed the case on the basis that the plaintiff failed to allege any actual injury in the form of identity theft, financial fraud or misuse of personal information that could be traced to the cyber incident.

Tommy Spitaletto (Partner-Dallas, TX) defended a large insurance client in Dallas County District Court in a four-day trial against plaintiffs seeking renter’s insurance coverage, alleging more than $600,000 in damages. Despite the test result of another insurer’s fire investigator that did not show an accelerant, Tommy’s team developed evidence during the lawsuit that supported fraud by the insured and arson – notoriously difficult to prove based on circumstantial evidence. A cell phone expert also testified that the plaintiff could not have been located where he claimed, because plaintiff’s cell phone accessed a cell tower within three miles of the loss location within minutes of the fire starting. The jury unanimously rejected the plaintiffs’ breach of the policy claim, as well as statutory “bad faith” claims of deceptive trade practices and unfair claims settlement practices. The jury awarded $39,000 on our client’s counterclaims as repayment of the amount advanced to the plaintiffs during the claim investigation prior to obtaining the evidence of arson.

Tommy Spitaletto (Partner-Dallas, TX) successfully argued the summary judgment motion in the District Court and the Fifth Circuit oral argument on appeal by plaintiff (an appellant-judgment creditor), who sued our carrier-client over a $1.6 million judgment against its insured, which resulted from an underlying personal injury lawsuit. The carrier had denied coverage because the insured failed to request a defense. The plaintiff argued that the policy does not expressly require an insured to “request” a defense, that our client had knowledge of the underlying lawsuit because it was defending another defendant in the same case, and that its insured had in fact forwarded a copy of the Petition. The appellant challenged the District Court’s summary judgment dismissal of his claims as a third-party beneficiary/judgment creditor. Relying on the Texas Supreme Court’s Crocker opinion and others, the Fifth Circuit affirmed summary judgment, finding that the insured must not only forward suit papers but also request a defense, which in this case did not occur. The court also rejected another argument by the appellant that prejudice was required.

Tommy Spitaletto (Partner-Dallas, TX) represented an English company that provided testing services for nutritional supplements in the United States. The client was sued by a plaintiff who had filed at least 10 cases and appeals in different state and federal courts, together with Major League Baseball, most of the MLB teams, various testing laboratories and others. In his 100-page complaint, the plaintiff claimed to have created a nutritional supplement containing an insulin-growth factor, and sued our client regarding advertising for testing of banned substances – asserting fraud, violations of the Lanham Act for false advertising, RICO violations, unjust enrichment and mental anguish. After extensive briefing with a joint defense group, the court dismissed all of the plaintiff’s claims with prejudice. Based on multiple prior lawsuits against other defendants, the court also deemed the plaintiff a “vexatious” litigant, and enjoined him from filing any new pleadings or cases in the Southern District of Texas unless he obtains advance permission from the Chief Judge. 

Tommy Spitaletto (Partner-Dallas, TX) argued a motion for summary judgment in the Southern District of Florida and a subsequent Eleventh Circuit appeal, securing dismissal of a coverage action by an insured under a $10 million D&O policy in a federal court case based on the “Insured versus Insured” exclusion. The insured argued that the exclusion did not apply to the causes of action asserted by the uninsured plaintiff, and that coverage should exist for at least those causes of action. The court, however, held that the exclusion defeated coverage for the entire underlying lawsuit, as Tommy argued, despite the presence of both insured and uninsured plaintiffs. The court distinguished and did not follow a Seventh Circuit opinion by Judge Posner, but followed the only other published opinion in the country at the time addressing this novel issue, turning the weight of authority nationwide back in favor of insurers. 

Tommy Spitaletto (Partner-Dallas, TX) argued a motion for summary judgment in Douglas County District Court, Nebraska, and a subsequent appeal to the Nebraska Supreme Court. The case involved a coverage dispute over a credit union’s lawsuit against its former directors for mismanagement and self-dealing. The district court initially granted declaratory judgment for the insured, but vacated that ruling after argument and granted summary judgment in favor of the insurer on multiple coverage defenses (e.g., claim not first made during the policy period because it related back to an earlier claim; regulatory claims exclusion; waiver or estoppel did not apply). The Nebraska Supreme Court affirmed the ruling after oral argument on appeal in the face of relatively undeveloped state caselaw at the time.