Serious bench slap from Judge Posner, who has been on a tear of late!
Remarkably, in its opening brief on behalf of its client Mead Johnson, the well‐known law firm of Cadwalader, Wickersham & Taft argued that the amendment does apply to claims and suits as well as to occurrences, because the caption of the amendment is “Duties in the Event of Occurrence, Offense, Claim or Suit.” That is a misrepresentation. The caption is “Duties in the Event of Occurrence, Offense, Claim or Suit, a. is hereby deleted and replaced with the following,” the “following” being the passage relating to notice to the risk manager of occurrences, not claims. The new pro‐ vision “a,” like the old one that it replaced, begins: “You must see to it that we are notified as soon as practicable on [sic] any ‘occurrence’ or an offense which may result in a claim.” (“Offense” is not defined, but the policy contains a list of covered “offenses,” such as copyright infringement— and, as we’ll see when we come to the second suit by Mead Johnson, product disparagement.) Claim and suit are mentioned not in provision “a” but in provision “b,” which contains no reference to the Director of Risk Management. The amendment changed only “a,” which pertains only to occurrences.
Cadwalader’s frivolous interpretation, though exposed in the insurance companies’ brief, is repeated in Mead Johnson’s reply brief and was defended by Cadwalader’s lawyer for Mead at the oral argument. That a major law firm would engage in such shenanigans distresses us. The firm’s argument regarding the amendment to the National Union insurance policy is censurable, and we hereby censure it.