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THE UPPER DECK CO., LLC v. FEDERAL INS. CO.

No. 02-56081.

358 F.3d 608 (2004)

The UPPER DECK COMPANY, LLC, a Delaware limited liability Company, Plaintiff-Appellant, v. FEDERAL INSURANCE COMPANY, an Indiana Corporation, Defendant Appellee.

United States Court of Appeals, Ninth Circuit.

Filed January 12, 2004.

Attorney(s) appearing for the Case

Gary W. Osborne, Osborne & Nesbitt, San Diego, CA, for the plaintiff-appellant.

Peter Abrahams, Horvitz & Levy, Encino, CA, for the defendant-appellee.

Before: BRIGHT, O'SCANNLAIN, and McKEOWN, Circuit Judges.

Argued and Submitted November 4, 2003 — Pasadena, California.

Opinion by Judge McKeown. Concurrence by Judge Bright.

OPINION

McKEOWN, Circuit Judge:

We consider here the scope of an insurer's duty to defend a lawsuit on the basis of an unpled theory of recovery and damages. This case arises out of a lawsuit brought against the Upper Deck Company ("Upper Deck") for violations of the Racketeer Influenced and Corrupt Organizations Act...

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