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Disgorge This: The Restitution Defense Meets the Duty to Defend
The restitution defense to insurance coverage proceeds from a simple and logical premise. If I steal money from you and am forced to return it, there is no loss for my insurer to reimburse because I never had a right to the money in the first place. I cannot insure against the risk of having to return stolen property. Life is rarely so simple, however, and insurers have asserted the restitution defense ' with varying degrees of success ' in a broad range of situations, some having little connection to the original premise. What if my payment to you includes both the money I stole and other items? What if I acquired your money innocently? What if I spent your money already and cannot repay it, so I assign to you my rights under the insurance policy? Or what if I exaggerated the value of my company's stock, which you then purchased from a third party without conferring a direct benefit on me?
The restitution defense declares that a claim for restitution or disgorgement is uninsurable as a matter of law. Nevertheless, the precise contours of the restitution defense remain unclear, in part, because of ambiguous terminology. Many courts articulate the defense as applying to the recovery of “ill-gotten gains” ' which could apply not only to stolen property, but also to personal injury caused by a corporation's unwillingness to incur the costs of adequate safety precautions. A merchant who exaggerates the quality or value of his products may be said to reap “ill-gotten gains.” The same could be true of an entrepreneur who “borrows” another's idea and develops it into a profitable enterprise. Plaintiffs typically allege that the defendant had a profit or cost-savings motive for his wrongful conduct, but that does not necessarily mean that the relief sought is restitutionary. Moreover, as difficult as it may be to determine whether a damages award represents the return of “ill-gotten gains” and for that reason is not subject to indemnification, that difficulty grows when determining whether the insurer owes a duty to defend or to reimburse defense costs associated with a claim for restitution.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers
There's current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Transfer Tax Implications on Real Property Leases
The real property transfer tax does not apply to all leases, and understanding the tax rules of the applicable jurisdiction can allow parties to plan ahead to avoid unnecessary tax liability.