Scottsdale Insurance Company v. Byrne

United States Court of Appeals
For the First Circuit

No. 18-1526

SCOTTSDALE INSURANCE COMPANY,

Plaintiff, Appellant,

v.

TIMOTHY L. BYRNE, as Co-Chairman of the Board of Trustees for
the Plumbers and Pipefitters Local 51 Pension and Annuity Funds;
ROBERT BOLTON, as Co-Chairman of the Board of Trustees for the
Plumbers and Pipefitters Local 51 Pension and Annuity Funds,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Alexis J. Rogoski, with whom Edward C. Carleton and Skarzynski
Black LLC were on brief, for appellant.
Miranda S. Jones, with whom O'Reilly, Grosso, Gross & Jones,
P.C. was on brief, for appellee.

January 16, 2019
 STAHL, Circuit Judge. In late 2014, the appellees in

this case brought suit against Wellesley Advisory Reality Fund I,

LLC ("WARF"). Acting in their capacity as representatives of the

Board of Trustees for the Plumbers and Pipefitters Local 51 Pension

and Annuity Funds (the "Funds"), Appellees alleged that WARF had

mismanaged and squandered money that the Funds had invested in

that entity. Following entry of default judgment against WARF in

that case, WARF assigned the Funds its rights in WARF's insurance

policy with Appellant Scottsdale Insurance Company ("Scottsdale"),

which had declined to defend WARF on the basis of several

exceptions within the policy.

Scottsdale brought an action against Appellees seeking

a declaration that it did not owe WARF a duty to defend or indemnify

under the policy and so owed the Funds nothing, and the Funds

counterclaimed. On cross-motions for summary judgment, the United

States District Court for the District of Massachusetts ruled that

the exclusions in Scottsdale's policies did not relieve the insurer

of its duty to defend WARF in the prior action. In a subsequent

order, the district court awarded the Funds $3 million, the full

limits of the insurance policy, plus post-judgment interest.

Scottsdale appeals, arguing both that it did not breach

its duty to defend under the policy under Massachusetts law and

that, even if it did, damages should be limited to the costs of

the defense. After careful consideration, we affirm.

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 I.

A. The Policy

The dispute in this appeal stems from a "Business and

Management Indemnity Policy" (the "Policy") issued by Scottsdale

to WARF, a real estate investment vehicle developed by Wellesley

Advisors.1 The Policy covered the period from November 15, 2013,

to December 15, 2014,2 and carries a coverage limit of $3 million.

The Policy contains the following coverage clauses:

1. The Insurer shall pay the Loss of the
Management Insureds for which the Management
Insureds are not indemnified by the [Company
and] which the Management Insureds have become
legally obligated to pay by reason of a Claim
first made against the Management Insureds
during the Policy Period . . . and reported to
the Insurer . . . for any Wrongful Act taking
place prior to the end of the Policy Period.

2. The Insurer shall pay the Loss of the
Company for which the Company has indemnified
the Management Insureds and which the
Management Insureds have become legally
obligated to pay by reason of a Claim first
[made against] the Management Insureds during
the Policy Period . . . and reported to the
Insurer . . . for any Wrongful Act taking place
prior to the end of the Policy Period.

3. The Insurer shall pay the Loss of the
Company which the Company becomes legally

1 The Policy names Wellesley Advisors as the insured, and
explicitly added WARF as an insured "parent company" in an
endorsement dated November 15, 2013. The parties do not dispute
that WARF was an insured under the Policy.
2 Initially, the policy period was set to expire on November
15, 2014. Scottsdale and WARF subsequently extended this period
by one month.

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 obligated to pay by reason of a [Claim first]
made against the Company during the Policy
Period . . . and reported to the Insurer . . .
for any Wrongful Act taking place prior to the
end of the Policy Period.

As relevant here, the Policy defines "Claim" as "a civil proceeding

against any Insured seeking monetary damages or non-monetary or

injunctive relief . . . ." "Loss" is defined as "damages,

judgments, settlements, pre-judgment or post-judgment interest

awarded by a court, and Costs, Charges, and Expenses incurred by"

the entities covered under the Policy. "Wrongful Act" is defined

as "any actual or alleged error, omission, misleading statement,

misstatement, neglect, breach of duty or act allegedly committed

or attempted by" the insured entities.

The Policy contains a number of exclusions, three of

which are claimed to be relevant to the present appeal. First,

the Policy includes a "Professional Services Exclusion" which

states:

Insurer is not liable for Loss . . . on account
of any Claim[] alleging, based upon, arising
out of, attributable to, directly or
indirectly resulting from, in consequence of,
or in any way involving the rendering or
failure to render Professional Services. . . .

Solely for purposes of this exclusion,
Professional Services means services as a real
estate broker or agent, multiple listing
agent, real estate appraiser, title agent,
title abstractor or searcher, escrow agent,
real estate developer, real estate consultant,
property manager, real estate inspector, or
construction manager. Such services shall

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 include, without limitation, the purchase,
sale, rental, leasing or valuation of real
property; the arrangement of financing on real
property; or any advice proffered by an
Insured in connection with any of the
foregoing.

Second, the Policy provides an "ERISA Exclusion" which states that

Scottsdale

shall not be liable for Loss . . . on account
of any Claim . . . for any actual or alleged
violation of the responsibilities,
obligations or duties imposed by [the]
Employee Retirement Income Security Act of
1974, as amended ["ERISA"], or any rules or
regulations promulgated thereunder, or
similar provisions of any federal, state or
local statutory or common law[.]

Finally, the Policy provides a "Conduct Exclusion" which excludes

coverage for

Loss . . . on account of any Claim . . .
alleging, based upon, arising out of,
attributable to, directly or indirectly
resulting from, in consequence of, or in any
way involving:

. . .

ii. the gaining of any profit, remuneration
or financial advantage to [which any]
Management Insureds were not legally entitled;
provided, however this exclusion [] shall not
apply unless and until there is a final
judgment against such Management Insureds as
to such conduct.

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 B. The Underlying Action

On November 10, 2014, Appellees filed suit against WARF3

in the United States District Court for the District of

Massachusetts seeking damages and injunctive relief (the

"Underlying Action"). Appellees claimed that, in 2005, they

invested $5 million with WARF, which WARF subsequently used to

"invest in various real estate parcels . . . ." Specifically, the

complaint avers that WARF purchased "The Stone House," a hotel in

Little Compton, Rhode Island; a residential condominium called

"Eastbourne Lodge" in Newport, Rhode Island; and a housing

development in North Attleboro, Massachusetts.

As to The Stone House, Appellees averred that WARF

entered into several mortgages on the property to fund renovations

therein. Appellees claimed that, despite this debt, WARF retained

all revenue from hotel operations at The Stone House as a "'fee'

for managing the property for [t]he Funds[]." WARF failed to make

required periodic payments on The Stone House mortgages, and the

mortgagee sued for more than $5.6 million to enforce the mortgages

against The Stone House.

3 The complaint in that action addresses allegations to both
"Wellesley Advisors" and "Wellesley Advisors Realty Fund I, LLC,"
seemingly interchangeably. This appears to be a distinction
without a difference, and the parties do not attach any
significance to that point. Accordingly, we refer to allegations
as against WARF for clarity.

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 Separately, the complaint averred that "a sister or

parent company" of WARF received notice from a different mortgagee

of its intent to foreclose on and sell the North Attleboro property

due to an unspecified "breach of the conditions of [that]

mortgage."

Through these actions, Appellees averred that WARF

"squandered the entire [$5 million] investment," and that "[t]he

properties were either lost to foreclosure or written down to a

zero value because of taxes or mortgages owed."

Based on these allegations, the Funds brought two claims

in state court against WARF for negligence and violations of ERISA,

respectively. Under the first of these claims, the complaint

contends that WARF was negligent in overleveraging the properties

in excess of their value, failing to pay property taxes, and

retaining income from the investment properties, especially from

The Stone House, for its own use. The second, ERISA-based count

claims that, through its retention of revenues from The Stone

House, WARF took on fiduciary duties to the Funds, which it

subsequently violated through "self-dealing and mismanagement of

[the properties.]"

WARF notified Scottsdale of the Funds' lawsuits against

it on November 14, 2014. Scottsdale replied verbally (and, later,

in writing) that the Funds' claims were excluded from coverage

based on the ERISA and Professional Services Exclusions.

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Accordingly, Scottsdale refused to either defend or indemnify WARF

as to the Funds' claims. WARF went into receivership and did not

contest the Underlying Action thereafter.

On November 25, 2015, the district court entered default

judgment in the Underlying Action in favor of Appellees, awarding

them $5,005,422.12.4 On May 15, 2016, WARF assigned to Appellees

all rights and claims that it held against Scottsdale.

C. Procedural History

Scottsdale brought the instant action on July 8, 2016,

in the District Court for the District of Massachusetts, seeking

declaratory judgment that Appellees' claims in the Underlying

Action were not covered under the Policy and so that Scottsdale

was not obligated to make any payments on the judgment in that

case. Appellees included in their answer several counterclaims,

including as relevant here claims that Scottsdale breached its

duty to defend and to indemnify WARF in the Underlying Action.

Appellees sought payment of the entire amount of the judgment in

the Underlying Action plus post-judgment interest. The parties

cross-moved for summary judgment.

On March 1, 2018, the district court denied Scottsdale's

motion and granted partial summary judgment to Appellees. The

court found that the allegations raised in the Underlying Action

4
This amount includes both the principal amount claimed
($5 million) as well as costs and attorneys' fees.

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were not "clearly excluded" from coverage under the policy and so

Scottsdale had, at minimum, a duty to defend WARF against those

claims. Based on Scottsdale's uncontested failure to take up

WARF's legal defense in the Underlying Action, the court concluded

that Scottsdale was liable to Appellees and required the parties

to file "motions concerning the form of the judgment," which it

said would "[p]resumably . . . be awarded [in] the amount of the

coverage limit." After the parties submitted the required

motions,5 the court entered judgment for Appellees on May 8, 2015,

in the amount of $3,038,081.10, consisting of the policy limit of

$3 million plus post-judgment interest calculated at the statutory

rate. Scottsdale timely appealed the district court's judgment.

II.

On appeal, Scottsdale argues that the district court

erred in concluding that it had a duty to defend the Underlying

Action. It points to the Policy's Professional Services and ERISA

Exclusions, contending that each of those exclusions clearly

applies to the claims asserted in the Underlying Action and

5
In its motion, Scottsdale also moved for clarification of
the summary judgment order, seeking dismissal of Appellees'
counterclaims for breaches of the implied covenant of good faith
and fair dealing, and violation of the Massachusetts consumer
protection statute, which the district court initially failed to
address. Appellees, on the other hand, sought entry of judgment
in the full amount of damages in the Underlying Action. The court
dismissed the remaining claims and denied the motion for damages
in excess of the policy limit plus interest.

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independently provides a basis for denying coverage. In the

alternative, Scottsdale contends that it is only liable for the

costs of defending the Underlying Action —— not the entire policy

limit —— because the claims are excluded by the Policy's Conduct

Exclusion. We examine these arguments separately and find no

reason to reverse the district court's determination.

A. Standard of Review

Review of the district court's grant of summary judgment

is de novo. Barrett Paving Materials, Inc. v. Continental Ins.

Co., 488 F.3d 59, 63 (1st Cir. 2007). Where, as here, there is no

dispute regarding the material facts, the only issue is whether

the moving party is entitled to judgment as a matter of law. Id.

(citation omitted).

This case comes before us based on our diversity

jurisdiction, and the parties agree that Massachusetts provides

the substantive law to be applied. "The interpretation of an

insurance policy is a question of law for the court." Valley Forge

Ins. Co. v. Field, 670 F.3d 93, 97 (1st Cir. 2012) (citation

omitted). "Under Massachusetts law, [the court] construe[s] an

insurance policy under the general rules of contract

interpretation. . . . begin[ning] with the actual language of the

policies, given its plain and ordinary meaning." Brazas Sporting

Arms, Inc. v. Am. Empire Surplus Lines Ins. Co., 220 F.3d 1, 4

(1st Cir. 2000) (citations omitted).

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 The "insurer's duty to defend is independent from, and

broader than, its duty to indemnify," Metro. Prop. & Cas. Ins. Co.

v. Morrison, 951 N.E.2d 662, 667 (Mass. 2011) (internal quotation

marks and citation omitted), and insurers "owe[] a duty to defend

[their insured] if the allegations in the underlying lawsuit are

reasonably susceptible to an interpretation that they state a claim

covered by [the] policy," Scottsdale Ins. Co. v. Torres, 561 F.3d

74, 77 (1st Cir. 2009) (citation omitted); see also Billings v.

Commerce Ins. Co., 936 N.E.2d 408, 414 (Mass. 2010) ("An insurer

has a duty to defend an insured when the allegations in a complaint

are reasonably susceptible of an interpretation that states or

roughly sketches a claim covered by the policy terms." (footnote

and citation omitted)). Said somewhat differently, "[i]n order

for the duty of defense to arise, the underlying complaint need

only show, through general allegations, a possibility that the

liability claim falls within the insurance coverage. There is no

requirement that the facts alleged in the complaint specifically

and unequivocally make out a claim within the coverage." Sterilite

Corp. v. Cont'l Cas. Co., 458 N.E.2d 338, 341 (Mass. App. Ct. 1983)

(internal quotation marks and citation omitted). Courts look to

"the source from which the plaintiff's personal injury originates

rather than the specific theories of liability alleged in the

complaint" to determine whether the policy covers the claim under

this standard. Bagley v. Monticello Ins. Co., 720 N.E.2d 813, 817

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(Mass. 1999) (internal quotation marks, citation, and emphasis

omitted).

Where, as here, an insurer asserts that it is not

obligated to defend due to some policy exclusion or exclusions, it

bears the initial burden of demonstrating that the exclusion

applies.6 See Saint Consulting Grp., Inc. v. Endurance Am. Spec.

Ins. Co., Inc., 699 F.3d 544, 550 (1st Cir. 2012) (citation

omitted). In order to meet this requirement, "the facts alleged

in the third-party complaint must establish that the exclusion

applies to all potential liability as matter of law." Norfolk &

Dedham Mut. Fire Ins. Co. v. Cleary Consultants, Inc., 958 N.E.2d

853, 862 (Mass. App. Ct. 2011) (citation omitted); see also Saint

Consulting Grp., 699 F.3d at 550 ("If even one of the counts in

either of the complaints falls within the coverage provisions but

outside any exclusion, [the insurer] would have a duty to defend

the entire lawsuit."). "[W]hether an exclusion applies to relieve

an insurer of its duty to defend [] depend[s] on whether the

insured would have reasonably understood the exclusion to bar

6 Generally, the insured bears the initial burden of "showing
that the overall coverage provisions of the insurance policy
apply[.]" Clark Sch. for Creative Learning, Inc. v. Phila. Indem.
Ins. Co., 734 F.3d 51, 55 n.1 (1st Cir. 2013). Where, as here,
the dispute centers only on the effect of coverage exclusions, the
court can bypass this initial showing and proceed directly to
evaluating the reach of those exclusions. See id. at 55.

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coverage." Essex Ins. Co. v. BloomSouth Flooring Corp., 562 F.3d

399, 404 (1st Cir. 2009).

B. The Professional Services Exclusion

Scottsdale first contends that all of the allegations in

the Underlying Action fall within the purview of the Professional

Services Exclusion. In particular, it contends that all of the

allegations in that case "arose out of" or "involved" "real estate

development, property management, the purchase of real property,

or the arrangement of financing on real property," all of which

Scottsdale argues fall "within the plain meaning of the

Professional Services Exclusion." In support of this position,

Scottsdale relies on the broad readings afforded by Massachusetts

law to the terms "arising out of" and "in any way involving," both

of which are used to preface the substantive scope of the

Professional Services Exclusion (as well as the other relevant

exclusions). See Bagley, 720 N.E.2d at 816 (explaining that the

phrase "arising out of" "must be read expansively, incorporating

a greater range of causation than that encompassed by proximate

cause under tort law" (citations omitted)); Clark Sch. for Creative

Learning, 734 F.3d at 56 (holding that "in any way involving" acts

as a "mop-up clause, intended to exclude anything not already

excluded by the other clauses," including "arising out of").

Scottsdale's argument fails, however, to account for all

of the claims raised in the Underlying Action. As noted above,

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the Underlying Action concerned losses stemming from WARF's

investment in three properties: The Stone House, and properties in

North Attleboro and Newport. Were those allegations limited to

claims regarding the mismanagement of The Stone House, we might

agree: claims stemming from WARF's renovation of that property and

retention of revenues from its operation of the hotel as a

"management" fee fit seemingly well within the exclusion for

actions taken "as a . . . real estate developer [or] . . . property

manager." As Appellees observed at oral argument, however, the

complaint offers no similar allegations that WARF was developing,

improving, or managing operations at the investment properties in

North Attleboro or Newport. Beyond alleging that WARF invested in

those parcels, the only additional claims are that the properties

were "lost to foreclosure or written down to a zero value because

of tax or mortgages owed" and, generally, that WARF "engaged in

self-dealing by retaining investment income from the properties

for its own use." These limited allegations preclude any

meaningful evaluation of whether the loss of the Newport and North

Attleboro properties was attributable to WARF's actions as a

property manager, developer, investor, or otherwise. As the

district court observed, "[a]t the very least, it is ambiguous

whether in fact all of WARF's purported misconduct stemmed from"

WARF's provision of professional services. Thus, the allegations

concerning the Newport and North Attleboro properties are not

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clearly within the Professional Services Exclusion, and, where

there is ambiguity, there is a duty to defend.

Scottsdale attempts to argue around this shortcoming,

claiming that all of the allegations fall within the broad

definition of "services" —— especially the "arrangement of

financing on real property" —— included in the Professional

Services Exclusion. Scottsdale misreads its own policy, however:

the plain language of the Policy is clear that, in order to fall

within the Professional Services Exclusion, the "services" as

defined must be provided "as a real estate broker or agent,"

"property manager," or another of that exclusion's enumerated

roles. As noted above, the allegations set forth in the Underlying

Action do not offer any meaningful basis from which we can conclude

that WARF was acting in any one of those roles with respect to

either the North Attleboro or Newport properties.

We therefore conclude that Scottsdale failed to meet its

burden of establishing that the Professional Services Exclusion

applies to all claims of liability within the Underlying Action.

C. The ERISA Exclusion

Scottsdale next turns to the ERISA Exclusion. As

discussed, the Underlying Action asserted both a negligence claim

and, separately, a claim that WARF's actions violated duties

imposed by ERISA. The parties do not dispute that the latter of

these claims falls outside of the Policy's coverage, and that count

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is not at issue here. Scottsdale goes a step further, however,

contending that because the negligence and ERISA claims arise from

the same set of facts, the negligence claim is therefore preempted

by ERISA.

At the outset, we note that none of the categories of

excluded "Claims" —— "actual or alleged violations" of (1) ERISA;

(2) "rules or regulations promulgated" pursuant to ERISA; or (3)

"similar provisions of federal, state or local statutory or common

law" —— explicitly remove "preempted" state law claims from the

Policy's coverage. Recognizing this shortcoming, Scottsdale

attempts to shoehorn preempted state-law claims into this clause

as a "similar provision[] of . . . state . . . common law." In

our view, however, the question of whether that language could

extend to a common law action for negligence, stated without

reference to ERISA-like fiduciary duties, is ambiguous at best.

That observation alone settles the issue before us: Scottsdale has

the burden of demonstrating the exclusion's application to the

Underlying Action, and all ambiguities must be read against the

insurer. See Valley Forge Ins. Co., 670 F.3d at 97. Accordingly,

we see no basis for excusing Scottsdale from its duty to defend

based on the ERISA Exclusion.7

7 Because we find that neither of the exclusions cited by
Scottsdale excuse it from its duty to defend, we do not reach
Appellees' alternate argument that, under its terms, the Policy's

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 D. The Conduct Exclusion

In its final argument, Scottsdale contends that its

liability is limited by the Policy's Conduct Exclusion. Unlike

the Professional Services and ERISA Exclusions, Scottsdale does

not claim that the Conduct Exclusion excuses it from its duty to

defend: by its terms, that exclusion is not implicated "unless

and until there is a final judgment against [the] . . . Insureds

. . . ." Rather, Scottsdale contends that, even if it breached

the duty to defend, it should be permitted to contest and limit

its indemnity obligation based on that exclusion's application to

financial gains to which WARF was not entitled, specifically WARF's

alleged retention of "investment income from the properties" at

issue in the Underlying Action.

An insurer's breach of its duty to defend "may also

trigger a duty to indemnify because an insurer in breach of its

duty to defend is bound by the result of the underlying action as

to all matters therein decided which are material to recovery by

the insured in an action on the policy." Metro Prop. & Cas. Ins.,

951 N.E.2d at 669 (internal quotation marks, alterations, and

citation omitted); see also Liberty Mut. Ins. Co. v. Metro. Life

Ins. Co., 260 F.3d 54, 63 (1st Cir. 2001) ("[T]he general rule

under Massachusetts law is that if the insurer fails to defend the

exclusions do not relieve the insurer of its duty to defend in any
event.

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lawsuit, it is liable for all defense costs and (assuming policy

coverage) the entire resulting judgment or settlement, unless

liability can be allocated among covered and uncovered claims.")

(citations omitted). "Where [the insured] defendant defaults, the

factual allegations in the complaint as to liability are deemed to

be admitted . . . and treated as if they are true" as to both the

defendant and those insurers who wrongfully decline to defend the

case. Metro. Prop. & Cas. Ins., 951 N.E.2d at 669.

Subject to these provisos, "insurer[s] that wrongfully

decline[] to defend a claim" may contest their indemnity under

their policy, provided, however, that they "have the burden of

proving that the claim was not within [the] policy's coverage."

Polaroid Corp. v. Travelers Indem. Co., 610 N.E.2d 912, 922

(Mass. 1993). Moreover, where some of the claims fall within a

policy's coverage and others do not, "an insurer that breaches its

duty to defend bears the burden of allocating a judgment against

its insured between covered and noncovered claims." Palermo v.

Fireman's Fund Ins. Co., 676 N.E.2d 1158, 1163 (Mass. App. Ct.

1997); see also Liquor Liab. Joint Underwriting Ass'n of Mass. v.

Hermitage Ins. Co., 644 N.E.2d 964, 968-69 (Mass. 1995).

Similar to the Professional Services Exclusion,

Scottsdale's attempt to escape its indemnity obligation fails to

account for all of the claims made in the Underlying Action.

Scottsdale maintains a narrow focus on allegations that WARF

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engaged in self-dealing when it retained fees from the investment

properties. Self-dealing, however, is just one component of the

many allegations in the Underlying Action. Much of the complaint

is concerned not with WARF's improper gain or pecuniary advantage,

but rather the squandering of Appellees' investment through, among

other things, negligently overleveraging and failing to pay taxes

and service mortgages on the properties.8 Those allegations were

"conclusively establishe[d]" by the entry of default as to

Scottsdale, Metro. Prop. & Cas. Ins., 951 N.E.2d at 669, and they

offer a theory of Appellees' loss that is entirely separate from

any improper gain by WARF. Scottsdale provides no basis from which

we could conclude that the Conduct Exclusion covers all of the

material allegations established in the Underlying Action, and it

further fails to demonstrate any grounds for allocating the

judgment award between portions attributable to WARF's improper

8 Scottsdale's reliance on Winbrook Communication Services
Inc. v. United States Liability Insurance Company, 52 N.E.3d 195
(Mass. App. Ct. 2016), is misplaced. There, the insured company's
negligent misstatements about its own financial stability induced
the judgment creditor to provide a benefit in the form of services
for which it was never paid. Id. at 197. Examining a conduct
exclusion similar to that in the Policy, the court concluded that
evidence in the record indicated that, through its
misrepresentations, the insured might have "received goods or
services that created an opportunity for gain or advantage . . . .
[such as] credit, investors, or customers." Id. at 203. In other
words, the insured's negligence might have directly contributed to
its receipt of an advantage to which it was not legally entitled.
In this case, however, we see no basis to conclude that WARF's
negligence in squandering Appellees' investment led to any
demonstrable gain.

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gains and negligent losses. As such, we see no basis from which

to relieve Scottsdale of its obligation to pay the policy limit.9

III.

The judgment of the district court is AFFIRMED.

9 In their opposition brief, Appellees hint that the district
court erred in limiting their recovery to the policy limits, rather
than the full judgment. Because Appellees failed to cross-appeal
on that issue, we do not address the merits of their claim. See
Jennings v. Stephens, __ U.S. __, 135 S. Ct. 793, 798 (2015) ("[A]n
appellee who does not cross-appeal may not attack the [judgment of
the lower court] with a view either to enlarging his own rights
thereunder or lessening the rights of his adversary." (internal
quotation marks and citation omitted)).

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