                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1717
                                      ____________

    TELA BIO, INC., a Delaware corporation; ANTONY KOBLISH; MAARTEEN
                          PERSENAIRE, an Individual,

                                                          Appellants

                                             v.

             FEDERAL INSURANCE COMPANY, an Indiana Corporation,
                             ____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                (D.C. No. 2-16-cv-05585)
                     District Judge: Honorable Mitchell S. Goldberg
                                      ____________

                           Submitted January 11, 2019
              Before: AMBRO, HARDIMAN, FUENTES, Circuit Judges.

                            (Opinion Filed: January 16, 2019)

                                      ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       TELA Bio, Inc. and its founders, Antony Koblish and Maarten Persenaire, appeal

the District Court’s order dismissing their declaratory judgment action against Federal

Insurance Company. We will affirm.

                                            I1

       TELA and its founders brought this insurance coverage action against Federal

after TELA was sued by its competitor LifeCell Corporation. In the District Court, the

parties vigorously disputed which substantive law should apply, with TELA advocating

for New Jersey law and Federal arguing for Pennsylvania law. After applying New

Jersey’s choice-of-law rules, the District Court agreed with Federal that Pennsylvania

substantive law applied, which led to the conclusion that Federal had no duty to defend

TELA. Appellants now argue that the District Court erred on both the choice-of-law issue

and the coverage issue. We address each argument in turn.

                                            A

       This case originated in federal court in New Jersey and was transferred to the

United States District Court for the Eastern District of Pennsylvania. Accordingly, the

District Court applied New Jersey’s choice-of-law rules. See Lafferty v. St. Riel, 495 F.3d



       1
         The District Court had jurisdiction under 28 U.S.C. § 1332 and we have
jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court’s choice of
law determination, Robeson Industries Corp. v. Hartford Acc. & Indem. Co., 178 F.3d
160, 164–65 (3d Cir. 1999), and order dismissing TELA’s complaint, Ballentine v.
United States, 486 F.3d 806, 808 (3d Cir. 2007).
                                             2
72, 76 (3d Cir. 2007). Because the laws of the two states presented a true conflict, the

District Court assessed “the interests each state has in applying its own law” to determine

“which state has the most significant relationship to the parties and the event.” Lebegern

v. Forman, 471 F.3d 424, 428 (3d Cir. 2006). When this inquiry involves an insurance

coverage dispute, as it does here, courts first look to “the place that the parties

understood . . . to be the principal location of the insured risk” and apply that state’s law

“unless some other state has a more significant relationship . . . to the transaction and the

parties.” Pfizer Inc. v. Emp’rs Ins. of Wausau, 712 A.2d 634, 638 (N.J. 1998) (internal

quotation marks omitted) (quoting Gilbert Spruance Co. v. Pennsylvania Mfrs. Ass’n Ins.

Co., 629 A.2d 885, 893 (N.J. 1993)). The District Court applied Pennsylvania law

because “the principal location of the risk insured by the [p]olicy appears to be

Pennsylvania” and “New Jersey does not bear a more significant relationship to the

parties or the matter.” TELA Bio, Inc. v. Fed. Ins. Co., 313 F. Supp. 3d 646, 654–55 (E.D.

Pa. 2018).

       Appellants claim New Jersey’s interests in applying its own law are substantial

because the policy “is effective within New Jersey borders,” Federal’s principal place of

business is in New Jersey, and the alleged acts triggering coverage happened in New

Jersey. TELA Br. 10. Even though the policyholders are Pennsylvania residents,

Appellants insist Pennsylvania does not have an interest in “applying its law to acts and

injuries that did not occur within its borders.” TELA Br. 10–11. They also assert that


                                               3
applying New Jersey law would conform more closely to the interests of the parties and

aid judicial administration.

       We perceive no error in the District Court’s choice-of-law analysis. In determining

which state has the most significant relationship to the parties and claim, courts must

consider four factors: (1) “the competing interests of the relevant states;” (2) “the national

interests of commerce among the several states;” (3) “the interests of the parties;” and (4)

“the interests of judicial administration,” Lonza, Inc. v. Hartford Acc. & Indem. Co., 820

A.2d 53, 62 (N.J. Super. Ct. App. Div. 2003) (quoting Pfizer, 712 A.2d at 639–40).

       The District Court correctly explained that because the policy was issued to

Pennsylvania insureds through a Pennsylvania broker, New Jersey does not have a

significant interest in its law applying to TELA’s duty to defend claim. In response,

TELA emphasizes LifeCell’s connections to New Jersey in the underlying case. But

those connections are irrelevant here because this case is concerned with the

Pennsylvania insureds (Appellants) and the policy Federal issued to them in

Pennsylvania. Since the insureds are not New Jersey residents, the application of

Pennsylvania law does not frustrate New Jersey’s interests. 2 Finally, applying New


       2
         TELA also claims that Pennsylvania’s interests are diminished by Federal’s
principal place of business (New Jersey) and TELA’s state of incorporation (Delaware).
However, in assessing the competing interests of the states, courts “consider whether
application of a competing state’s law under the circumstances of the case ‘will advance
the policies that the law was intended to promote.’” Pfizer, Inc., 712 A.2d at 639 (quoting
Gen. Ceramics Inc. v. Firemen’s Fund Ins. Cos., 66 F.3d 647, 656 (3d Cir. 1995)). The
New Jersey rule at issue here—allowing courts to look beyond a complaint in analyzing
the duty to defend—aims to protect the expectations of its insureds. See Abouzaid v.
                                              4
Jersey law would not aid judicial administration as TELA suggests because the “site of

the litigation of the underlying case,” TELA Br. 13, is not pertinent to adjudicating this

coverage dispute. For these reasons, we agree with the District Court that Pennsylvania

law applies because it is the principal location of the insured risk and has the most

significant relationship to the parties and their dispute.

                                               B

       Appellants claim entitlement to coverage under the policy’s “Advertising Injury

and Personal Injury Liability Coverage” provision. App. 767. That provision covers, in

relevant part, “damages and claimant costs that the insured becomes legally obligated to

pay . . . for . . . personal injury that is caused by an offense to which the coverage

applies.” Id. The policy provides coverage for several offenses, including libel and

slander, defined as “electronic, oral, written or other publication of material that . . . libels

or slanders a person or organization.” App. 817.

       LifeCell did not sue for libel or slander. Nevertheless, Appellants contend that the

underlying suit involves defamation because LifeCell alleged that TELA: (1) marketed its

product as an improvement on LifeCell’s product; (2) exploited LifeCell’s reputation and




Mansard Gardens Assocs., LLC, 23 A.3d 338, 347 (N.J. 2011). New Jersey does not have
an interest in applying that rule to Pennsylvania residents. Conversely, Pennsylvania has
an interest in applying its rule—limiting the duty-to-defend analysis to the factual
allegations in the complaint—because it discourages insureds from using “artful
pleadings designed to avoid exclusions in liability insurance policies.” Mut. Benefit Ins.
Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999).
                                                5
good will; and (3) induced several LifeCell employees to work for TELA by making

negative statements about LifeCell.

       We agree with the District Court that the policy does not provide TELA with

coverage under the libel and slander provision because LifeCell’s complaint in the

underlying case does not implicate either tort. Under Pennsylvania law, the insurer has a

duty to defend the insured only if “the factual allegations of the complaint against the

insured state a claim which would potentially fall within the coverage of the policy.”

Roman Mosaic & Tile Co. v. Aetna Cas. & Sur. Co., 704 A.2d 665, 669 (Pa. 1997).

       Libel and slander require defamatory statements which “tend[] to harm a person’s

reputation.” Defamatory, Black’s Law Dictionary (10th ed. 2014). Yet none of the

allegations Appellants cite from LifeCell’s complaint are defamatory because they do not

involve harm to LifeCell’s reputation.3 In fact, LifeCell’s complaint alleges that TELA

sought to benefit from LifeCell’s good reputation. So the District Court rightly concluded

that LifeCell’s allegations “pertain to a business dispute over stolen employees and

confidential trade secrets” and, as a result, “coverage under the [l]ibel and [s]lander

[p]rovision of the [p]olicy was not triggered.” TELA Bio, Inc., 313 F. Supp. 3d at 658.


       3
         Appellants also argue that evidence outside the LifeCell complaint, such as
statements made during TELA’s summit for surgeons in 2014 and Paul Talmo’s
deposition testimony, suggests that LifeCell may allege defamation claims against TELA.
However, courts cannot consider evidence outside the complaint in analyzing the duty to
defend under Pennsylvania law. See Kvaerner Metals Div. of Kvaerner U.S., Inc. v.
Commercial Union Ins. Co., 908 A.2d 888, 896–97 (Pa. 2006). In any event, Appellants
cite no controlling precedent establishing a duty to defend based on what a plaintiff may
allege rather than actual averments in an underlying complaint.
                                              6
       Bootstrapping its principal holding, the District Court also held that even if

LifeCell’s allegations triggered coverage under the libel and slander provision, Federal

still would have no duty to defend because the underlying suit falls under the intellectual

property rights exclusion. Here again, we agree with the District Court.

       As the Court noted, the broad language of this exclusion’s paragraph B states:

              [T]his insurance does not apply to the entirety of all
              allegations in any claim or suit, if such claim or suit includes
              an allegation of or a reference to an infringement or violation
              of an intellectual property law or right, even if this insurance
              would otherwise apply to any part of the allegations in the
              claim or suit.

App. 790 (emphasis added). The expansive language just quoted “clearly and

unambiguously excludes from coverage all allegations within a suit, if that suit contains

any allegations of intellectual property rights violations.” TELA Bio, Inc., 313 F. Supp. 3d

at 659. This exclusion plainly applies to LifeCell’s suit, which asserts that TELA

misappropriated its trade secrets and proprietary information.

                                      *      *       *

       For the reasons stated, we will affirm the District Court’s order.




                                             7
