Intellectual property plaintiffs that have received sizable monetary awards, or “nuclear verdicts,” worth $10 million or more, typically must endure a lengthy appellate process before seeing any of the awarded money. As a result, some plaintiffs have purchased a relatively new product called judgment preservation insurance (JPI) to secure those judgments.

Because it is a relatively new product with a short track record, its use raises questions.

One such question is whether disclosure of JPI should be required on appeal. While some commentators have argued disclosure should be required, not all agree.

“The bargain here is a private agreement between an insurer and insured,” said Insurance Recovery & Advisory partner Mark Plumer, who has advised on several of these policies. “It does not affect the merits of the appeal, nor the amount that will have to be paid out if the appeal fails.”

Another question is whether JPI will remain available. The future of the quickly evolving industry will depend on how well the underwriters evaluate the risks on appeal, Plumer added. “If there are enough large insurance losses that have to be paid out under these policies, the market could dry up. The market also won’t survive if the plaintiffs seeking JPI coverage believe the premiums are too high,” he said. “This is and will remain a delicate balance.”

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