Another Blow Dealt To Restitution, Disgorgement Defense

Law360, New York (October 6, 2014, 10:31 AM EDT) -- In recent years, purchasers of directors and officers and professional liability insurance have been stunned to learn that their carriers have denied coverage for a wide range of routine D&O claims on the theory that their policies do not cover loss that could be characterized as restitutionary in nature or where a judgment or settlement arguably requires the insured to "disgorge" a sum of monies. This "restitution/disgorgement defense," based on principles of insurability of certain risks, has been asserted in surprising circumstances — from insider trading claims to Section 11 securities offering claims....

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