The In Pari Delicto Defense to Bankruptcy and Other Claims Against Directors, Officers and Third Parties

Anticipating or Raising the Defense in Bankruptcy and Other Asset Recovery Litigation

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

Conducted on Tuesday, October 23, 2018

Recorded event now available

or call 1-800-926-7926
Program Materials

This CLE webinar will provide an overview of developments in asset recovery litigation against officers, directors and other outside professionals of distressed or insolvent companies. The panel will also discuss the evolving and complex rules underlying the in pari delicto defense that may bar recovery by trustees, receivers and creditors.


Bankruptcy trustees, receivers and other plaintiffs in asset recovery actions often aggressively pursue claims against outside professionals of distressed and insolvent entities, including accountants, auditors, attorneys, lenders and advisers.

A significant defense for professionals in such cases is the in pari delicto doctrine, which can prevent the plaintiff, who stands in the shoes of the debtor entity, from pursuing damages resulting from conduct in which the debtor’s officers, directors or employees were complicit.

This defense has been rapidly evolving in the past few years, and its scope varies by jurisdiction. The defense featured prominently in the Madoff and MF Global litigation, among many other high profile cases. More recently, the Delaware Supreme Court ruled that a professional adviser who knowingly participates in a fiduciary breach of duty may not be shielded by the in pari delicto defense but may avail itself of the defense for negligence claims.

Listen as our authoritative panel of litigators discusses recent trends in asset recovery litigation against officers, directors and outside professionals of distressed companies and the evolving scope and application of the in pari delicto defense as a shield to recovery by trustees, receivers and creditors.



  1. Common claims against D&Os and outside professionals
    1. Fraud
    2. Aiding and abetting fraud and breach of fiduciary duties
    3. Malpractice
    4. Fraudulent conveyance
  2. Applicability and scope of the in pari delicto defense
    1. Standing to pursue claims
    2. Exceptions to the doctrine
  3. Recent case law developments
  4. Bankruptcy litigation
  5. Litigation outside bankruptcy


The panel will review these and other critical issues:

  • 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?


Beatty, Jon Maxwell
Jon Maxwell Beatty

Diamond McCarthy

Mr. Beatty is a trial attorney who handles all types of complex litigation with an emphasis on financial fraud...  |  Read More

Williams, John
John S. Williams

Williams & Connolly

Mr. Williams handles an array of complex litigation, and has particular experience in securities litigation and...  |  Read More

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