Court:
New York Court of Appeals

(in support of motion for leave to appeal)

Amicus Issue:
Whether it was proper for the Appellate Division to apply the Kokesh decision concerning a federal statute of limitations (SOL) to determine the availability of insurance coverage under state law, where the applicable insurance standard of insurability – whether a payment has any compensatory purpose – is exactly the opposite of the federal SOL standard – whether a payment has any penal purpose.  Whether it was proper for the Appellate Division to construe an insurance policy issued in 2000, and coverage for a settlement entered into in 2006, in accordance with a 2017 “change in the law” rather than pursuant to the state of the law and the parties’ understanding at the time (under which disgorgement was not considered a penalty).

Counsel of Record:
Covington & Burling LLP

Mitchell F. Dolin
Dustin Cho
Robert W. Jacques

Other Amici:
None