Insurability of Disgorgement and Restitution Claims After Kokesh, TIAA-CREF, and J.P. Morgan

Practical Guidance for Policyholder and Insurer Counsel

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, September 25, 2019

Recorded event now available

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Program Materials

This CLE webinar will discuss whether insurance policies provide defense and indemnity coverage for restitution or disgorgement of “ill-gotten gains”--an issue that continues to challenge policyholders, insurers, and courts nationwide. The panel will provide practical guidance gleaned from recent seminal decisions and explain the most compelling arguments for and against these claims, ranging from broad public policy considerations to close reading of exclusions.


Whether there is insurance coverage for disgorgement or restitution of purported "ill-gotten gains" under D&O and other professional liability policies is becoming a more pervasive issue in jurisdictions across the country. The increased filings of consumer and securities class actions, breach of fiduciary duty actions, SEC enforcement actions, and appraisal actions have fueled this judicial debate.

The Supreme Court's unanimous decision last year in Kokesh v. SEC, which held that SEC disgorgement is an uninsurable “penalty,” has had far-reaching implications for insurance practitioners. Some lower courts have since followed suit but in In Re: TIAA-CREF Insurance Appeals, the Delaware Supreme Court held that settlement of a civil lawsuit involving claims for disgorgement was an insurable loss under New York law. These cases provide valuable guidance on how counsel--and courts--should approach coverage disputes over disgorgement claims.

Listen as our panel of seasoned insurance attorneys provides practical guidance gleaned from the recent seminal decisions and explains the most compelling arguments for and against these claims--ranging from broad public policy considerations to close reading of exclusions.



  1. Overview
  2. Recent cases
  3. Key issues
  4. Policyholder perspectives
  5. Insurer perspectives
  6. Practical strategies and best practices


The panel will review these and other relevant issues:

  • When does an insured's loss represent disgorgement of an improper claim?
  • What guidance does In Re: TIAA-CREF Insurance Appeals provide on approaching coverage disputes?
  • When does an alleged wrongdoer's liability insurance cover an aggrieved party's claim for restitution?
  • What are the fundamental legal principles and considerations applicable to the disgorgement inquiry?
  • How have courts interpreted the public policy exclusion for "uninsurable loss"?
  • When analyzing courts' efforts to determine the prevailing "public policy" in the context of whether insurance should be allowed to cover claims for restitution, on what basis do courts have authority to decide public policy?
  • What role does fact-finding play in identifying uninsurable disgorgement?


Keyes, Theodore
Theodore A. Keyes

Special Counsel
Schulte Roth & Zabel

Mr. Keyes practices in the areas of environmental law, insurance law and litigation. His litigation practice covers a...  |  Read More

Margolies, Melinda
Melinda B. Margolies

Kaufman Borgeest & Ryan

Ms. Margolies focuses her practice on insurance coverage and commercial disputes. She has worked extensively with...  |  Read More

Whitman, Mikaela
Mikaela Whitman


Ms. Whitman’s practice focuses on the representation of insureds in all phases of insurance recovery, from...  |  Read More

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