Recent Case Notes & Commentary

RE-SUBMIT YOUR CLAIM ONLY IF NEW EVIDENCE COMES TO LIGHT

State Farm Mutual Automobile Insurance Company v. Chris Kephart / Temping Teachers

FORUM Claim Number: FA2005001897174

26th June 2020


A second bite of the UDRP apple is generally an ill advised move

Technically there’s nothing stopping a Complainant from bringing the same complaint twice. It’s not an advisable course of action though because re-filing a complaint which has already been dismissed is generally not a good look, but more importantly – it will almost certainly be denied unless it contains some compelling new evidence has come to light since the first complaint.

Re-filing a complaint merely because you feel like you didn’t get it right the first time will not be treated favourably by any UDRP panellist. The one exception is when the following are satisfied:

  1. new evidence has come to light which was unavailable at first instance;

  2. the new evidence relates to the basis on which the first complaint was decided;

Absent those factors, the claim will be considered ‘duplicative’ of the first claim and the original decision will probably be applied once more.

The evidentiary hurdle for a complainant who wants to have a second go is high in the sense that the evidence must be compelling and create a real possibility that the case will be decided differently the second time round (See Assurant, Inc. v. Tom Baert, FA 1143728).

Recently in State Farm v Chris Kephart, US insurance company State Farm failed to clear the evidentiary hurdle when they decided to re-file the same complaint a month after the first one. The only change was the addition of some legal arguments – all of which proceeded from the same evidence. Naturally, it was dealt with by a very short decision.

The message from State Farm is clear: merely applying a different interpretation to the evidence submitted in the first claim won’t cut the mustard or give you a second bite of the apple.