In Vigilant Ins. Co. v. Bear Stearns Cos., Inc. (34 AD3d 300 [1st Dept 2006], revd 10 NY3d 170 [2008]) in an opinion that was reversed on other grounds, the Appellate Division found the existence of a triable issue of fact as to whether the portion of the defendant's settlement with the SEC that was attributed to disgorgement "actually represented ill-gotten gains or improperly acquired funds." (Id. at 302.) The Court expressly noted that the defendant had submitted evidence that the settlement was based on market share instead of being tied to the amount of commissions the defendant had received. (See id. at 303.)