Disgorgement is an equitable remedy measured by the defendant's gain rather than the plaintiff's loss. It appears in fiduciary breach, trade secret, unfair competition, and securities contexts.
It differs from compensatory damages measured by harm.
Alternative Names:
Disgorgement of Profits, Restitutionary Disgorgement
Why it Matters?
Measuring by the defendant's gain rather than the plaintiff's loss can produce recovery far exceeding actual harm, which is the remedy's significance and its exposure. Apportioning profits attributable to the wrongful conduct rather than to legitimate factors is the defense analysis, since a defendant's overall profitability reflects many contributions. The burden of apportionment frequently falls on the defendant once the plaintiff establishes gross revenue.
Frequently Confused with
Related terms
Frequently asked questions
How is disgorgement measured?
Who bears the apportionment burden?
