Navigating Fraud Issues in Bankruptcy: Enforcing Creditor Rights and Protecting Recoveries

A live 90-minute premium CLE webinar with interactive Q&A


Tuesday, September 10, 2019

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, August 16, 2019

or call 1-800-926-7926

This CLE webinar will provide insight and analysis on considerations for debtors and creditors where there is reason to believe a fraud has been committed.

Description

When there are allegations of fraud in the bankruptcy context, multiple pre-bankruptcy issues face individual and corporate parties, including internal investigations, special board committees and their duties, assessing insurance coverage, pre-bankruptcy litigation planning, and provisional remedies available to creditors.

Once a debtor commences bankruptcy proceedings, creditors may take multiple actions. Creditors may seek the appointment of a trustee or examiner (with or without expanded powers), replace management with a CRO, pursue claims against third parties such as officers and directors or recipients of fraudulent transfers (both domestic and foreign), and file an objection to discharge in the case of an individual debtor.

Finally, standing issues and other common defenses such as in pari delicto arise in the nuanced context of insolvency proceedings.

Listen as our authoritative panel of bankruptcy counsel provides practical guidance and strategic insights into navigating these and other fraud issues in the bankruptcy context to maximize creditor rights.

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Outline

  1. Debtor's perspective
    1. Discovery of fraud
      1. Duties of board/management
      2. SEC/shareholder claims (public company considerations)
    2. Assessing insolvency implications
      1. Insurance coverage issues
      2. Managing litigation by creditors
      3. Overlap with criminal
    3. Creditor's perspective
      1. Using non-bankruptcy litigation to liquidate claim/non-dischargeability
      2. Dealing with parallel proceedings
        1. Criminal actions
        2. Civil forfeiture actions
  2. Post-petition considerations
    1. Debtor's perspective
      1. Conflicting duties of individual debtors
    2. Creditor's perspective
      1. Appointment of Chapter 11 trustee/conversion
      2. Liquidating fraud claims (BK court vs. non-BK court)
      3. Effect of BK on fraudulent transfer claims
      4. Litigating non-dischargeability
    3. Trustee's perspective (Chapter 7, 11 or liquidating trustee)
      1. Assessing fraud claims
      2. In pari delicto defense
      3. Assessing fraudulent transfer claims
        1. Standing issues
        2. SOL issues
          1. Recent cases regarding longer SOL if the IRS was a creditor
        3. Extraterritoriality issues presumption against extraterritoriality and comity
        4. Recovery issues
          1. Monetize through the assignment of claims/judgment
          2. Litigation financing

Benefits

The panel will review these and other important issues:

  • What are the critical pre-bankruptcy issues facing individual and corporate parties when there is reason to believe a fraud has been committed?
  • Once a debtor commences bankruptcy proceedings, what actions may creditors take to maximize their recovery?
  • What are the trends in asset recovery litigation in which the in pari delicto defense may apply, and what are the conventional theories of liability?
  • Is the in pari delicto defense a problematic obstacle to filing suit against professionals and professional firms who represented the distressed or insolvent company?
  • What are some of the best arguments for and against the application of the defense?
  • What are the most recent developments in case law related to fraud in bankruptcy?

Faculty

Dunn, Joseph
Joseph R. Dunn

Member
Mintz Levin Cohn Ferris Glovsky and Popeo

Mr. Dunn's practice is focused primarily in the areas of corporate reorganization and bankruptcy law, although...  |  Read More

Vilaplana, Victor
Victor A. Vilaplana

Of Counsel
Foley & Lardner

Mr. Vilaplana focuses his practice on the handling of insolvency matters, particularly complicated business...  |  Read More

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