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Complex Bankruptcy and Insolvency Litigation: Innovative Strategies to Recover, Protect, Preserve Company Assets

Maneuvering Through the Window Between the Business Judgment Rule and Intentional Dishonest Acts

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, March 30, 2022

Recorded event now available

or call 1-800-926-7926

This CLE course will review director and officer protection statutes across key jurisdictions and show counsel how to maneuver through the window between the business judgment rule and intentional dishonest acts to ensure access to directors and officers liability insurance policies if duties of care (e.g., gross negligence and recklessness), loyalty (e.g., self-dealing and conflicts of interest), and more recently, supervision, have been violated. The program will also discuss how to spot negligent and unlawful opinions, services, and transactions by professionals.


Recovering, protecting, and preserving company assets in Chapter 11 or Chapter 7 starts with understanding what led to a company's demise, which may have occurred over a long time under the watch of multiple sets of management. Often the responsible parties blame circumstances beyond their control, but investigation tells a different story.

Counsel will need knowledge of how the terms of key bankruptcy documents and financing strategies affect recovery. Often battles arise between creditor committees and others over standing, and the effect of releases in confirmation orders has become controversial.

Once culpable parties are identified, counsel need innovative litigation strategies based on a thorough understanding of state corporate law and bankruptcy law to avoid and sidestep typical defenses.

Listen as our premier panel explores how counsel for debtors, creditors, financial institutions, creditors' committees, and others can discover what killed the company, who is responsible, and how to obtain recovery.



  1. Investigation and identification of culpable parties
    1. Preserving and reviewing key electronic and other evidence
    2. Importance of early thorough witness interviews
    3. Finding a cooperative inside witness
  2. Impact of key bankruptcy documents on recovery
    1. How to maximize value of potential litigation claims to calm creditors
    2. Ways to work with creditor/investors to bring slightly overlapping claims
  3. Anticipating and neutralizing typical defenses
    1. Common key defenses
    2. Threading the needle to avoid pitfalls
    3. Preserving insurance coverage


The panel will address these and other critical issues:

  • How can trustees or creditors avoid triggering insurance exclusions and stay within coverage?
  • How do consensual and nonconsensual releases affect strategy?
  • When are nonconsensual releases proper and likely to be approved?
  • What is the current law regarding standing to bring avoidance actions under Bankruptcy Code section 548 and state law?
  • Who has standing to bring breach of fiduciary duty claims?
  • What are the tell-tale signs of ignoring wrongdoing in ordinary opinions and scope of work descriptions?


Burkart, Michael
Michael Burkart

Bankruptcy Plan Administrator
Heller Ehrman

After more than 20 years of experience in commercial banking, having served as a President & CEO of four...  |  Read More

Sullivan, Christopher
Christopher D. Sullivan

Diamond McCarthy

Mr. Sullivan has successfully represented a wide variety of clients in major litigation, including both plaintiffs in...  |  Read More

Willoughby, Thomas
Thomas A. Willoughby

Felderstein Fitzgerald Willoughby Pascuzzi & Rios

Mr. Willoughby's practice focuses on difficult insolvency related cases. Tom has been lead counsel to businesses in...  |  Read More

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