Divver v. D.C. Department of Insurance, Securities & Banking

Notice: This opinion is subject to formal revision before publication in the
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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 22-AA-169

                         DANNY P. DIVVER, PETITIONER,

                                         V.

    D.C. DEPARTMENT OF INSURANCE, SECURITIES & BANKING, RESPONDENT.

         On Petition for Review of a Final Decision and Order of the
      Commissioner of the Department of Insurance, Securities and Banking
                          of the District of Columbia
                           (Case No. SB-1516(A))


(Argued September 19, 2023                          Decided December 28, 2023)

      Stuart M.G. Seraina, for petitioner.

      Thais-Lyn Trayer, Deputy Solicitor General, with whom Brian L. Schwalb,
Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor
General Ashwin P. Phatak, Principal Deputy Solicitor General, and Ethan P. Fallon,
Assistant Attorney General, were on the brief, for respondent.

      Before BLACKBURNE-RIGSBY, Chief Judge, and DEAHL and HOWARD,
Associate Judges.


      DEAHL, Associate Judge: Danny Divver was a financial adviser and insurance

broker whose now-deceased client, Marianne Delin, left him nearly the entirety of

her roughly $500,000 estate. That drew the attention of regulators, including the
                                          2

Department of Insurance, Securities, and Banking (“DISB”), which investigated

Divver. After an evidentiary hearing, the DISB concluded that Divver had exerted

undue influence over Delin’s decision to name him the beneficiary of her estate,

ordered Divver to repay the ill-gotten funds, imposed a civil penalty against him,

and permanently barred him from engaging in the securities and investment advisory

business in the District.


      Divver now petitions this court for review, arguing that the DISB made three

principal errors: (1) it applied incorrect legal standards when determining that he

engaged in undue influence; (2) under the correct standards, there was insufficient

evidence to conclude that Divver engaged in undue influence; and (3) the DISB had

no authority to order restitution under the circumstances of this case because there

was no victim who could be made whole through an order of restitution. We agree

with him on the first point, reserve judgment on the second, and disagree with him

on the third.    We therefore vacate the DISB’s order and remand for further

consideration in light of this opinion.
                                           3

                       I. Facts and Procedural Background


                  Divver Becomes the Beneficiary of Delin’s Estate


      At the core of this case is how Divver came to be the beneficiary of Delin’s

estate. Before the events underlying this case, Divver was a licensed investment

adviser and insurance broker. He first met Delin when he sold her a Medicare

Supplement policy in 1990, when Delin was in her mid-60s. Divver testified that

over the ensuing decades he would regularly visit Delin to help her file Medicare

claims, and through those visits they became close friends, with Delin vacationing

with the Divver family in 1997. In addition to being Delin’s insurance broker,

Divver became her securities broker, financial adviser, and emergency contact, and

he held her durable power of attorney. Over the years he sold her various financial

instruments, including an annuity from Transamerica Life Insurance that eventually

accounted for the bulk of her assets, worth over half-a-million dollars.


      In 2005, Delin was on the cusp of turning 80 years old and sought to make

end-of-life preparations. Divver introduced her to Thomas Downs, an attorney

specializing in trusts and estates, to help. Downs was Divver’s own estate planning

attorney as well as his friend, and the two of them often referred clients to each other.

Downs prepared a living trust for Delin in which she was the trustee and she named

Divver the successor trustee. In her living trust, Delin listed just ten “family”
                                          4

members, three of whom—including Divver—were identified as friends. The trust

specified that upon Delin’s death, Divver would receive $10,000—the same amount

as each of Delin’s five nieces and nephews and another one of her friends—as well

as the vast bulk of her personal property (not including her jewelry, which Delin had

earmarked for another friend, Lisa Leval). Delin also named Divver the executor of

her estate and designated him as her agent under a medical power of attorney. The

remainder of Delin’s estate would go to her sister, Sonja Lewin, and Lewin’s

husband.


      Delin was close with her sister, who (like Delin’s nieces and nephews) lived

in Sweden. Delin had no family in the United States but was close friends with some

of her neighbors, as she had lived in her apartment building for almost 50 years and

had strong social ties to the community there. One neighbor with whom she was

close, Brant Levine, helped Delin with a variety of needs over the years: shopping,

running errands, calling Ubers, and the like. In 2013, when Delin was in her late

80s, she fell at home and was hospitalized. Levine encouraged her to move into an

assisted living center, and Delin ultimately heeded that advice.


      In April 2014, in what turned out to be the final year of her life, Delin moved

into an assisted living center.     Levine testified that after the move, Delin

communicated less frequently with her former neighbors, and that her health
                                         5

appeared to be in decline. At the same time, Divver became heavily involved in her

care. He accompanied her to doctors’ appointments, ran errands for her, and helped

her manage her medications. In July 2014, Divver contacted Downs’s office to say

that “there may well be some changes to be made” to Delin’s will. Over the

following months Downs and Delin discussed those changes, and in October of that

year, Divver drove Delin to Downs’s office, where Delin executed new trust and

estate documents. These documents made Divver the nearly sole beneficiary of

Delin’s estate, giving him everything except for her jewelry and some porcelain

dishes, which she earmarked for her friend, Leval. The documents explicitly stated

that Delin was intentionally not leaving money to any family members because she

“believe[d] they already have sufficient assets.” A few days later, Divver drove

Delin to her bank where she removed her sister as joint owner of her checking

account and added Divver as joint owner instead. Delin told Divver that she had

made him the beneficiary of her estate after making those changes to her will.


        By January 2015, Delin was visibly unwell and there was mounting evidence

that she was suffering from mental decline. Around that time she was diagnosed

with late-stage pancreatic cancer and she opted for hospice care. On March 2, 2015,

Delin slipped into a coma and her doctors told Divver she had but a short time to

live.   In the days that immediately followed, as Delin was comatose, Divver

transferred $76,000 from Delin’s bank account to his and his son’s bank accounts.
                                          6

Delin then died on March 7, 2015. Within weeks, Divver attempted to collect the

death benefit from her Transamerica annuity.


                          The Fallout After Delin’s Death


      Following Delin’s death, Divver’s beneficiary status came under heavy

scrutiny. Levine had been suspicious of Divver for some time, given that Divver

had become more involved in Delin’s care when she was increasingly vulnerable.

Levine asked Divver if he was a beneficiary of Delin’s estate, and Divver said he

was not. Still suspicious, Levine reported his concerns to the DISB, the Financial

Industry Regulatory Authority (“FINRA”), and the police; he contacted the Legal

Counsel for the Elderly; and he wrote a letter to Divver’s employer, SagePoint

Financial. SagePoint had a policy against its advisers being the beneficiaries of their

clients’ estates or holding their powers of attorney without the company’s approval.

But Divver, who was aware of this policy and knew he was Delin’s beneficiary and

held her power of attorney for some time, did not apprise SagePoint of that

information.


      Meanwhile, Divver moved quickly to collect the $547,358.02 death benefit

from Delin’s Transamerica annuity. He filed a claim for the lump-sum payment of

that amount on March 24—seventeen days after Delin’s death—and Transamerica

issued the check to Divver two days later. But just before Divver could cash the
                                          7

check, SagePoint notified Transamerica that Divver had sold Delin the annuity he

was trying to collect on, and Transamerica stopped payment on the check so that

Divver was ultimately never able to cash it. Transamerica then filed an interpleader

action in Maryland to determine whether Divver or Delin’s sister, Lewin, was

entitled to Delin’s annuity death benefit. Divver and Lewin settled that dispute in

2016, splitting the estate evenly: Divver received $233,818.20 and was permitted to

keep the $76,000 he had already withdrawn from Delin’s account, while Lewin

received the remaining $309,818.20. That settlement agreement explicitly released

all claims Lewin had against Divver.          FINRA also investigated Divver and

concluded that his failures to disclose his power of attorney and beneficiary status

violated FINRA rules. Divver eventually agreed to a $10,000 fine and a nine-month

suspension from associating with any FINRA member, without admitting to the

violations FINRA had found.


      The DISB also commenced this action, alleging that Divver violated a variety

of laws relating to the provision of securities and insurance. A hearing officer heard

five days of testimony, after which she concluded that Divver had engaged in

unethical and dishonest conduct and had violated D.C. law. 1 The hearing officer


      1
       As permitted by regulation, the DISB Commissioner delegated her authority
to conduct a hearing to a hearing officer, who made proposed findings of facts and
conclusions of law. 26-B D.C.M.R. § 301. The Commissioner then issued a final
                                          8

credited the testimonies of Levine and Dr. Peter Lichtenberg—the DISB’s expert

witness on undue influence—and generally found Divver to be not credible. The

Commissioner’s order largely adopted the hearing officer’s findings, including that

Divver “employ[ed] a device, scheme, or artifice to defraud” Delin, in violation of

(a)(1)(A), by exerting undue influence over her. The

Commissioner ordered that Divver’s insurance producer’s license be revoked, that

he be permanently barred from the securities business in the District, that he pay a

civil penalty of $40,000 and hearing costs of $10,000 to the District of Columbia,

and that he pay $233,818.20 plus interest—the amount he received in his settlement

with Lewin—in restitution “to the estate of [] Marianne Delin.”


      In an earlier petition to this court, Divver pointed out that Delin’s 2014 will

made Divver himself the beneficiary of Delin’s estate, so that he had effectively been

ordered to pay restitution to himself. On the DISB’s motion we remanded to the

Commissioner, who amended her order so that it directed Divver to pay restitution

to “the descendants of Marianne Delin” instead.


      Divver now petitions this court to review the amended order.




order based on the hearing officer’s report and the parties’ responses to it. 

 at
§ 316.
                                           9

                                 II. Undue Influence


            A. The DISB Misconstrued the Law of Undue Influence


      Divver first argues that the DISB applied the incorrect legal standard when it

concluded that he exerted undue influence over Delin. We will “affirm an agency’s

decision ‘if the decision contains findings on each material, contested issue of fact;

substantial evidence supports each factual finding; the decision’s legal conclusions

flow rationally from the factual findings; and the decision is not arbitrary, capricious,

an abuse of discretion, or otherwise contrary to law.’” Fort Myer Constr. Corp. v.

Briscoe, 

, 775-76 (D.C. 2023) (quoting Tyler v. George Washington

Med. Fac. Assocs., 

 (D.C. 2013)). “Undue influence is a mixed

question of fact and law,” and we review Divver’s legal complaints de novo. In re

Ingersoll Trust, 

 (D.C. 2008).


      Divver argues that the DISB Commissioner made two vital legal errors when

articulating the law of undue influence: (1) she misstated the core definition of undue

influence, and (2) she mistakenly opined that there is a presumption of undue

influence when the alleged influence is exerted by a fiduciary. Because undue

influence is the only basis under which the Commissioner concluded that Divver

“employ[ed] a device, scheme, or artifice to defraud” Delin in violation of D.C. Code
                                          10

§ 31-5605.02, Divver argues that these errors leave the Commissioner’s rulings

unsustainable. We agree.


              1. The Commissioner applied the incorrect legal test


      The Commissioner’s first legal error was that she articulated a much more

relaxed standard for undue influence than what is recognized in the District. Under

our precedents, “undue influence consists of ‘physical or moral coercion that forces

the testator to exercise the judgment of another rather than [their] own.’ . . . ‘[T]he

pressure on the testator must destroy [their] agency and free will.’” Roberts-Douglas

v. Meares, 

 (D.C. 1992), modified on reh’g, 

 (D.C.

1993) (citations omitted). Where “no facts show[] that [the testator’s] free agency

was destroyed or that the will was a direct result of force or coercion,” there can be

no finding of undue influence. Himmelfarb v. Greenspoon, 

 (D.C.

1980). In short, “there must be proof of coercion,” In re Ingersoll Trust, 

, and “[m]ere suspicion [of it] is insufficient,” Himmelfarb, 

.


      The Commissioner’s brief statement of the law of undue influence did not

align with those relevant standards or cite to any relevant precedents. Instead, the

Commissioner described a very different inquiry. Here it is in its entirety, with the

penultimate sentence doing most of the work:
                                         11

             The general rule regarding undue influence is when a
             “dominant party or influential party on one side may exert
             influence against a dependent or submissive one on the
             other. The parties are frequently in a relationship that
             justifies the dependent party in trusting the other, in
             relying on his judgment, and in assuming that the
             dominant party will be motivated by the dependent[]
             party’s welfare and interests.” Dan B. Dobbs, Law of
             Remedies, Damages, Equity, Restitution, § 10.3 (2d ed.
             2001). The dominant[] party’s conduct counts as undue
             influence when he uses his position to sway the judgment
             of the other by advice or suggestion, or even by
             implication. Much of the law of undue influence appears
             to be part of the law of confidential relationships. Id.


Order at 55 (cleaned up, emphasis added). Where our precedents require “pressure

[that] destroy[s] [another’s] agency and free will,” Meares, 624 A.2d at 418 (citation

omitted), the Commissioner’s definition would find undue influence when a

dominant party “sway[s] the judgment of the other.” Although undue influence

cannot exist without “coercion,” In re Ingersoll Trust, 

, the

Commissioner’s definition would find it in “advice or suggestion.”


      To illustrate the chasm between the correct standard and the one adopted by

the Commissioner, consider Meares, in which a group of parishioners sued their

church leaders for undue influence because the leaders coerced members to donate

beyond their means to help finance a new church building. 624 A.2d at 408. The

parishioners alleged that church leaders badgered them from the pulpit to donate,

purported to be channeling the “voice of God” while doing so, threatened them with
                                           12

divine retribution and excommunication, and made some walk a “gauntlet” of hostile

church members and face public shaming when they did not make sufficient

contributions. Id. at 411-12. There was no question that the church leaders, who

“occupied a position of trust and confidence vis-a-vis their parishioners,” id. at 409,

420-21, used those positions to sway the judgment of the parishioners by advice or

suggestion (to put it mildly). The Commissioner’s averred test here thus would have

been readily satisfied. We nonetheless upheld a grant of summary judgment against

the parishioners after concluding that the evidence was insufficient to show that their

“free agency” had “been destroyed” so that their donations were “effected by the

will of the [church leaders], not of the [parishioners].” Id. at 419. 2


      By contrast, when we have upheld undue influence findings, the facts show

something far starker than the mere advice or suggestion of somebody in a position

of trust. For example, in Ross v. Blackwell, Ross was a roofing contractor who was

hired to do some work for an elderly, disabled, “nearly blind and bed-bound” woman



      2
        We initially reversed the grant of summary judgment as to one couple who
alleged that in addition to being aggressively solicited and having to walk the
gauntlet, church leaders also came to their home and pressured them to sell it to raise
funds for the church. Id. at 425-26. We later, on petition for rehearing, revised our
judgment and upheld the grant of summary judgment against even that couple, after
they conceded (1) they were made to walk the gauntlet only after making their
donation in question, and (2) the pressure to sell their house was little more than a
“suggestion.” Meares, 624 A.2d at 432.
                                          13

named Hamilton. 

 (D.C. 2016). Ross and his wife then “cut

Hamilton off from her previous friends,” and within a few months of being hired to

do roofing work, Ross had become Hamilton’s guardian and his wife had become

her conservator, despite neither one having any prior relationship with Hamilton. 

. Shortly thereafter, Hamilton named Ross and his wife the sole beneficiaries

of her estate. 

. Meanwhile, Ross’s wife took out a considerable mortgage

against Hamilton’s home. 

. When the whole affair came under judicial

scrutiny, Ross and his wife “repeatedly misled or lied to the court, with one or both

[of them] telling the court that there was no mortgage on the house, which was

‘patently false,’” along with a host of other misrepresentations. 

 In total, we

found that evidence was sufficient to support the conclusion that Ross and his wife

had “destroy[ed Hamilton’s] free agency,” 

 (citation omitted), through

actions that went far beyond mere advice or suggestion.


      At bottom, people are generally free to advise and persuade others to their

own ends, even if those ends are noxious, the advice is self-serving, and they gained

influence only through manipulative ingratiation. 3 The law of undue influence is



      3
        When a fiduciary doles out self-serving advice against their client’s interests,
that of course might constitute a breach of fiduciary duties, and it can obviously be
grounds for professional discipline. But those are distinct questions from whether
they have exerted undue influence and destroyed their client’s free will—not every
                                         14

not a guardrail against being steered into bad decisions by opportunistic dirtbags.

MacMillan v. Knost, 

 (D.C. Cir. 1942) (“One has the right to

influence another to make a will in his favor . . . us[ing] argument and persuasion so

long as it is fair and honest and does not go to an oppressive degree where it becomes

coercive.”). It is concerned only with coercion so severe that it can fairly be said

that the person’s free agency has been destroyed and displaced by another. The

Commissioner announced a far more sweeping view of undue influence that is

irreconcilable with our precedents. When applied to financial advisers like Divver,

that erroneous definition would seem to sweep in a great deal of their legitimate

work—they are, after all, paid to make suggestions and offer advice on financial

decisions. The Commissioner’s application of this incorrect legal test was error.


 2. The Commissioner mistakenly invoked a presumption of undue influence


      The Commissioner’s second legal error was that she erroneously invoked a

presumption of undue influence where a fiduciary relationship exists. This court has

expressly rejected any such presumption: “Confidential relations [such as fiduciary

relations] existing between the testator and the beneficiary do not alone furnish any

presumption of undue influence; there must be proof of coercion.” In re Ingersoll



breach of fiduciary duty or act of professional misconduct constitutes an exertion of
undue influence.
                                         15

Trust, 

 (citations omitted). Although “[i]t generally takes less to

establish undue influence when a confidential relationship exists between the

parties,” Meares, 624 A.2d at 421 (citation omitted), that lower bar is not tantamount

to creating a presumption of undue influence.


      The District counters that it is not obvious that the Commissioner in fact gave

any weight to this erroneous presumption in her legal analysis. The Commissioner

noted only that the District’s expert (Lichtenberg) opined that there was a

presumption of undue influence where a fiduciary relationship exists, but the

Commissioner’s own legal conclusions did not expressly say anything about such a

presumption. That is true so far as it goes, but it does not alleviate our concerns,

given that (1) the Commissioner expressly credited Lichtenberg’s testimony,

without noting any reservation as to this point in her extremely brief legal analysis;

(2) she never expressly disavowed this presumption, as our precedents have; (3) the

Commissioner’s own articulation of the relevant legal standards was so cursory that

it appears that she simply accepted the legal framework articulated by Lichtenberg;

and (4) the Commissioner’s application of a more relaxed standard of undue

influence than what this court recognizes seems of a piece with the application of

this erroneous presumption.
                                          16

      At the very least, and given that we would vacate the Commissioner’s order

based on the first error identified above in any event, it is enough here to say that we

have no assurance that the Commissioner did not apply this erroneous presumption.

So we now reiterate that there is no presumption of undue influence stemming from

fiduciary relationships. It instead remains the DISB’s burden to establish that Divver

exerted undue influence over Delin under the standards articulated above. Because

the Commissioner did not address that relevant and exacting legal test, and seemed

to invoke an erroneous presumption along the way, we vacate her order and remand

for reconsideration. 4


                B. Sufficiency of the Evidence of Undue Influence


      Divver next argues that the evidence before the Commissioner could not

support a finding of undue influence under the appropriate legal standards. If he

were correct about that, we could direct judgment in his favor rather than remanding

for further consideration. We conclude that it would be premature for us to resolve



      4
          Divver hints at one more error in the Commissioner’s legal analysis,
suggesting that the DISB was required to provide “clear and convincing evidence”
of undue influence, whereas the Commissioner applied a preponderance of the
evidence standard. He makes no effort to develop this argument on appeal and so
we do not address it. Comford v. United States, 

 (D.C. 2008)
(“It is not enough merely to mention a possible argument in the most skeletal way,
leaving the court to do counsel’s work.” (citation omitted)).
                                          17

this question without the benefit of the Commissioner’s application of the correct

legal test, and so we reserve judgment on this question. But we nonetheless offer

the following comments on the record evidence as guidance to the Commissioner.


      There is rarely a smoking gun establishing undue influence. Such influence

is usually exerted behind a veil of secrecy and often the most critical witness who

could pierce that veil is deceased. That is why our precedents recognize that

“[u]ndue influence is nearly always a matter of inference from facts and

circumstances disclosed by the evidence of the conditions and surroundings of the

parties.” Wiggins v. Smith, 

 (D.C. Cir. 1950) (quoting Barbour v.

Moore, 

 (D.C. Cir. 1897)). In other words, “undue influence

may be established by circumstantial evidence,” and its “existence may be inferred

from such factors as disproportionate gifts made under unusual circumstances, the

age and health of the donor, and the existence of a confidential relationship.”

Meares, 624 A.2d at 422 (quoting In re The Bible Speaks, 

 (1st

Cir. 1989)). There is a fair bit of circumstantial evidence that could support a finding

of undue influence here, but there is likewise circumstantial evidence that militates

against such a finding, as we now explain.
                                           18

                 1. Factors favoring a finding of undue influence


      There are at least seven aspects of this case that provide some support for a

finding of undue influence, and in combination, they might provide sufficient

evidence of coercion to support an undue influence finding. They are (1) the sheer

size of Delin’s gift to Divver, as she channeled nearly her entire estate to him; (2) the

fact that she did so just five months before her death, during which there was some

evidence of her mental decline; (3) the fact that Divver was her fiduciary; (4) the

evidence of Delin’s near-total reliance on Divver during her final year; (5) her

relative isolation from her social network; (6) the fact that Divver is the person who

apparently initiated review of Delin’s will and estate plans and brought her to her

appointment with Downs; and (7) Divver’s efforts to conceal what he was doing.


      The first three factors do not require much elaboration. Divver had been listed

as a beneficiary of Delin’s estate since 2005, but up until the final months of her life,

he stood to inherit a relatively modest sum of $10,000, in addition to most of her

personal property. Just five months before her death, Delin altered her estate plan

to leave Divver nearly all of her assets, worth over half a million dollars. That drastic

change and its timing provide support for a finding of undue influence, as do the

limited findings that Delin was experiencing some degree of cognitive decline at the
                                            19

time. 5 Divver’s fiduciary status further supports a finding of undue influence, and

“[w]here such a relationship is implicated, the validity of a purported gift is closely

scrutinized” and “may be set aside . . . even though the transaction could not have

been impeached in the absence of a confidential relationship.” Meares, 624 A.2d at

421. These three factors alone are far from conclusive—it is not so unusual for

people to make drastic changes to their wills as death nears, which is precisely when

estate planning most naturally comes into focus. But in the panoply of circumstantial

evidence, each of these three factors weighs in favor of finding undue influence.

Meares, 624 A.2d at 422 (listing the size of the gift, its timing, and confidential

relationships as factors in the inquiry).


      The next three factors—Delin’s extreme reliance on Divver, her relative

isolation during her final year, and his apparent initiation of the review of her will—

are interrelated. After Delin moved into the assisted living center, Divver became


      5
        On remand, it would be helpful if the Commissioner provided more detailed
findings on the degree of cognitive decline that Delin was suffering at the time she
made changes to her will, to the extent that is possible. There was conflicting
evidence on that topic, it is hotly disputed, and it could prove critical to the undue
influence inquiry. For similar reasons, it would be helpful to gauge the value of
Delin’s personal property that Divver stood to inherit under the 2005 will, because
that figure affects how drastic the 2014 change in Delin’s will was. Finally, the
Commissioner might wish to explain in more detail the degree to which Downs’s
testimony is credited, as he generally supported Divver’s position that Delin
voluntarily and intelligently chose to make him the beneficiary of her estate, at least
so far as Downs could tell.
                                          20

much more involved in many aspects of Delin’s decisionmaking and care; as Delin

told Levine, Divver “was taking care of everything now.” This stands in contrast to

the situation in In re Ingersoll Trust, where we held that there was no undue

influence in part because nothing in the record suggested one person took over the

“day-to-day financial decisions” of the other, or generally “controlled her assets

during her lifetime.” 

 (citation omitted). Here, by contrast, Divver

was a co-owner of Delin’s bank account, and as her financial adviser, he was largely

responsible for the fact that substantially all of her assets ended up in a single

financial instrument, the Transamerica annuity. There is reason to believe that

Divver himself was the impetus for Delin changing her will in the final year of her

life. Plus, during that final year Delin was largely isolated from others. While the

degree and cause of that isolation is not clear—Delin told Levine that she simply did

not want visitors—the mere fact of her isolation made her more susceptible to undue

influence. See Ross, 

 (testator’s isolation “supported an inference

that appellants were exerting undue influence over her”). 6



      6
        These factors can cut both ways. It would be one thing if Divver had taken
affirmative steps to isolate Delin from her social circle, as was the case in Ross. 

. But there was little evidence of that. And it is quite another thing if
Delin’s social circle effectively abandoned her once she moved into her assisted
living center, which could prompt somebody in Delin’s position to divert her estate
to the one person who was taking care of everything toward the end of her life,
namely, Divver.
                                        21

      The seventh factor is Divver’s concealment of his activities, a factor that we

have given considerable weight to in past cases. Ross, 

 (“efforts at

concealment” could “support an inference of undue influence”). Divver failed to tell

his employer that he had been entrusted with Delin’s power of attorney and had been

named a beneficiary of her estate, despite knowing that he was required to disclose

those facts. When Levine asked Divver directly whether he was the beneficiary of

Delin’s estate, Divver lied and said he was not. And while it is now undisputed that

Divver was the one who called Downs’s office in July 2014 and indicated that Delin

wanted to make some changes to her will, Divver initially lied about that during his

deposition testimony in the Divver/Lewin litigation. And most damning of all,

Divver transferred $76,000 from Delin’s bank account during the final days of her

life without informing anybody—Delin herself was comatose—and he took steps to

apparently cover his tracks, such as funneling some of that money to his son’s bank

account. These facts, in combination, are at least arguably sufficient to support a

finding of undue influence.


              2. Factors disfavoring a finding of undue influence


      There are also at least six counterweights to a finding of undue influence

worth cataloging, none of which we need to belabor here: (1) Divver had known

Delin for decades before he became a beneficiary of her estate, not for mere months
                                         22

(as was the case in Ross); (2) the evidence is undisputed that Divver and Delin were

friends during those decades, and there is some evidence that they were quite close

friends, including seemingly undisputed evidence that Delin had vacationed with

Divver’s family; (3) Delin had initially made Divver a beneficiary of her estate,

identifying him as “family” back in 2005, a decade before her death when there was

no question she was of sound mind and long before any suggestion of undue

influence; (4) Delin made Divver the primary beneficiary of her estate after

independent consultations with an attorney, Thomas Downs, who detected no

evidence of mental frailty and no apparent coercion; (5) there is evidence that Divver

did in fact “take care of everything” for Delin during her final year, as she herself

put it, providing an explanation for why she might have freely chosen to divert her

estate to him; and (6) there is evidence that there was simply no other obvious

candidate to be Delin’s beneficiary, as her sister was nearing death and Delin’s

nieces and nephews apparently did not need the money. 7




      7
        In Delin’s 2005 will, she expressly noted one person who she was excluding
as a beneficiary—Maud Carlsson—on the grounds that “she is financially secure.”
When Delin revised her will in 2014, she offered the same explanation for why she
was omitting Lewin and her nieces and nephews as beneficiaries: she “believe[d]
they already have sufficient assets.” That is a facially plausible basis for Delin’s
2014 changes to her will.
                                          23

      In short, there are a number of factors that cut both for and against a finding

of undue influence here. We will not hazard a judgment about whether the evidence,

when taken together, is sufficient to support a finding of undue influence under the

appropriate legal standards. The Commissioner should take those relevant factors

into account when applying the correct legal test for undue influence.


          III. The Commissioner Has Authority to Order Restitution


      Divver argues that even if he had unduly influenced Delin, it was beyond the

scope of the Commissioner’s authority to direct him to pay restitution to Delin’s

descendants.    While Divver acknowledges that the Commissioner is generally

authorized to order restitution, see 

(b)(5), he argues that

there is simply nobody to make whole in this case. The argument is a bit convoluted,

but it is roughly (1) that Delin had no direct descendants; (2) so the order that Divver

provide restitution to her descendants is effectively a directive to reimburse Lewin’s

estate, which had stood to inherit Delin’s estate absent the 2014 changes to her will;

and (3) because Divver and Lewin already settled all claims between them as part of

the Maryland interpleader action, there is nobody to make whole through an order

of restitution. We disagree, for three reasons.


      First, it is simply not true that Lewin’s willingness to accept a settlement of

less than the entirety of Delin’s estate means that she has been made whole absent
                                          24

any further restitution. While Lewin may have relinquished any additional private

causes of action against Divver through the 2016 settlement agreement, that private

agreement does not bind the DISB in exercising its regulatory functions. The DISB

remained free to conclude that Delin’s estate had not been made whole, as private

settlement agreements generally will not constrain an agency’s enforcement powers.

See U.S. Commodity Futures Trading Comm’n v. Kratville, 

 (8th

Cir. 2015) (“[Q]uite apart from whether the individual victims are satisfied with their

private settlements, full and ample restitution, and other equitable remedies such as

disgorgement of profits, serve distinct deterrence functions that are vital to the

‘[]public interest.’” (citation omitted)). And people frequently settle claims at a

discount, factoring in considerations of time, energy, and litigation risk, so the mere

fact that Lewin settled her claims does not conclusively establish that she had been

made whole. Divver has cited no authority for his novel position to the contrary, nor

did he argue before the DISB that the settlement agreement had any preclusive effect

on its ability to award restitution.


      Second, restitution’s central purpose is not simply to make a victim whole,

but also to disgorge the wrongdoer of ill-gotten funds. In re Hager, 

 (D.C. 2002) (“the objective of restitution” is “preventing unjust enrichment”

(quoting In re Robertson, 

 (D.C. 1992))); see also Restatement

(Third) of Restitution and Unjust Enrichment § 1, cmt. a (2011) (the “tradition from
                                          25

which we receive the modern law of restitution authorizes a court to remedy unjust

enrichment wherever it finds it”); Dan B. Dobbs, Law of Remedies, Damages,

Equity, Restitution § 1.1 (2d ed. 2001) (“[R]estitution today is a general term for

diverse kinds of recoveries aimed at preventing unjust enrichment of the defendant

and measured by the defendant’s gains.”). The restitution order here can be justified

on the sole basis of disgorging Divver of ill-gotten funds, even if the proper recipient

of those ill-gotten funds might be up for debate. That debate does not truly concern

Divver—he is no worse or better off no matter who the funds are directed to. 8


      Third, in Lewin’s settlement with Divver, Lewin did not purport to release

any claims that Delin’s estate had against him. It is Delin’s estate, not Lewin

personally, which the DISB reasoned was wrongfully deprived by Divver’s actions,

and the restitution directed to Delin’s descendants was directed at making the estate

whole (while carving Divver out of the estate’s beneficiaries). The fact that Lewin—


      8
          Divver complains that it is impossible to pay restitution to Delin’s
“descendants” because she has none, so “the Commissioner has ordered that Divver
pay restitution to unspecified individuals whose existence is uncertain.” If Divver
is genuinely in need of guidance about how to comply with the Commissioner’s
order, he can seek that guidance from the Commissioner herself if, after remand, the
restitution order remains in place. But this does not appear to be an instance of
genuine uncertainty. Divver instead seems to think that if it is unclear whom he
must pay restitution to, then he should not have to pay restitution at all. That is
wrong, as we have held that disgorging Divver of ill-gotten funds is justification
enough for the DISB’s restitution order.
                                         26

or, now, Lewin’s estate—might be the first in line to benefit from that restitution

order is of no moment; she is simply not the same legal entity as Delin’s estate. 9


                                         IV.


      We vacate the DISB’s order and remand for reconsideration in light of this

opinion.


                                                           So ordered.




      9
        Divver’s final argument is that the Commissioner did not have authority to
amend her order after this court’s initial remand because, in his view, the
Commissioner’s amendments exceeded the bounds that D.C. Superior Court Rule
60 places on the amendment of judgments. As an initial matter, Rule 60 is a court
rule that has no direct application to the Commissioner’s abilities to amend her
orders. While the Commissioner nonetheless relied on Rule 60 as authority for her
amended order, that was entirely unnecessary and we need not explore the bounds
of Rule 60 now because the Commissioner’s authority to amend her order on remand
was already decided by this court in the prior appeal. In that prior appeal we
expressly “remanded to the [DISB] for further proceedings consistent with the
statements made in [the DISB’s] motion,” and as the DISB explained in its motion,
the purpose of a remand was to permit the Commissioner “to issue an amended Final
Decision and Order” along the very lines that it ultimately issued. Whatever bounds
that Rule 60 places on the amendment of judgments in the abstract, even assuming
those bounds might constrain the DISB, this court is clearly empowered to authorize
an agency to amend its orders and judgments (just as sure as it is empowered to
vacate those orders and judgments entirely). And in this case, this court already
approved the Commissioner’s amendment, so Divver’s Rule 60 argument is
meritless.