Leveraging the Voluntary Payment Doctrine in Litigation: Protecting Client Funds From Recoupment or Return

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


Conducted on Wednesday, April 22, 2020

Recorded event now available

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Program Materials

This CLE webinar will prepare trial lawyers to wield or resist the powerful weapon that is the voluntary payment doctrine (VPD). The VPD broadly prohibits parties from recouping payments they made to others, even if it exceeded the amount due the recipient or was made by mistake.

Description

Legal commentators call the VPD "evil" because it allows parties to retain payments to which those parties are not entitled. In some circumstances, the doctrine can be used to protect businesses who receive overpayments to defend against claims of consumer fraud or deceptive practices.

Counsel can defend clients from claims for recoupment or repayment of funds by setting up the VPD as a defense. Typically, the defense requires that you plead and prove that the payment was voluntary and made with full knowledge of the facts--mistakes of law are not relevant. At that point, the burden can shift to the payor to prove the doctrine does not apply.

The payor can try to meet their burden by showing that the doctrine does not apply regardless of the subject matter by showing fraud, coercion, or other facts that call into question the nature of the payment. There are also specific instances (which vary from state to state) to which the voluntary payment doctrine does not apply.

Listen as this panel, whose clients have benefitted from or suffered under the VPD, explores the nuances of the doctrine, how to rely on it during legal proceedings, and the practical effects of it during negotiations. The panel will also explore state-to-state differences in the law.

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Outline

  1. Requirements of the VPD
    1. Voluntary
    2. All facts known
    3. Mistake as to law
  2. Defenses to the VPD
    1. Deception or fraud
    2. Duress
    3. Urgency
  3. Situations in which VPD has been applied
  4. Situations in which VPD has not been applied
  5. Choice of law and choice of forum

Benefits

The panel will review these and other essential issues:

  • What is the VPD and what is its scope?
  • Why are legal commentators so critical of the VPD?
  • Are there ways of avoiding the consequences of the VPD?
  • How should jurisdictional differences as to the VPD impact legal strategy?

Faculty

Abrams, James
James D. Abrams

Partner
Taft Stettinius & Hollister

Mr. Abrams represents clients in all aspects of civil litigation with a concentration in commercial matters. Before...  |  Read More

Flora, Colin
Colin E. Flora

Civil Litigation Attorney
Pavlack Law

Mr. Flora focuses his practice on civil litigation for both plaintiffs and defendants. This ranges from personal injury...  |  Read More

Rotatori, Mark
Mark P. Rotatori

Partner
Jones Day

Mr. Rotatori has experience representing companies in commercial litigation matters with an emphasis on federal and...  |  Read More

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