White & Case Wins Appellate "Foil" Case For Insurers
New York,
April 12, 2007 ... White & Case recently secured a significant appellate victory in a Freedom of Information Law ("FOIL") case involving insurance company clients. The Appellate Division, First Department of New York County, in
Markowitz v. Serio that was decided on April 5, overturned a lower court decision, agreeing with White & Case's argument that granting access to certain proprietary information as to policy cancellations, non-renewals and declinations would give the companies' competitors an unfair market advantage.
"This win reaffirms the application of an important FOIL exemption that protects companies which volunteer to, or must, file proprietary information with New York public agencies from harmful disclosure," said Richard G. Liskov, counsel in White & Case's New York office. "This decision will have a great impact in New York and possibly persuade courts in other states to rule the same way."
Insurance companies doing business in New York state are required to disclose proprietary information to the New York Insurance Department, which is not released to the public at large. In 2004, concerned with the availability and affordability of auto insurance in Brooklyn, Borough President Marty Markowitz sued the Department, under the State's Freedom of Information Law seeking access to the insurers' proprietary data on auto policy counts by zip code and cancellations, non-renewals and declinations by zip code. In December, 2004 White & Case intervened on behalf of several insurance companies in a suit brought by the Borough President against the Insurance Department. In January, 2006 the New York Supreme Court ruled that the Department had no right to exempt the requested data from disclosure under the Law. The Appellate Division unanimously reversed that decision, citing an exemption in the Freedom of Information Law that allows government agencies to refuse disclosure if it will cause substantial competitive harm to the company filing the information.
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