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Expert Analysis

Insurance Industry's Disgorgement Defense Hits A Wall

By Marshall Gilinsky and Vivian Michael, Anderson Kill PC (May 4, 2017, 11:50 AM EDT) -- For decades, and especially since the turn of the millennium, policyholders seeking claims under directors' & officers' and professional liability insurance policies have been bedeviled by insurance companies invoking the "disgorgement" defense against coverage of a wide array of claims that involve allegations of wrongdoing. Insurance companies use this defense to assert that a given judgment or settlement involves restitution, or the return of ill-gotten gains rather than a loss per se, and so is not covered....

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