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

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Conducted on Wednesday, June 10, 2020

Recorded event now available

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Course Materials

This CLE course will discuss developments in asset recovery litigation against officers, directors, and outside professionals of distressed or insolvent companies, in particular the evolving and complex in pari delicto defense that may bar recovery by trustees, receivers, and creditors.

Description

Bankruptcy trustees, receivers, and other plaintiffs in asset recovery actions often aggressively pursue claims against the management as well as 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. When the plaintiff stands in the shoes of the debtor entity--as do bankruptcy trustees, receivers, and some others--and attempts to recover for the debtor's conduct in which the debtor's officers, directors, or employees were complicit, the defendants often seek to bar recovery arguing that the plaintiff is "of equal fault" with defendants.

This defense has been rapidly evolving in the past few years, and its scope varies by jurisdiction. The Madoff and MF Global litigation, among many other high profile cases, featured this defense prominently. In the past two years, at least two U.S. Circuit Courts of Appeal and numerous lower bankruptcy courts have considered the defense.

Listen as our authoritative panel of trial lawyers 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.

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Outline

  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. Which state's laws apply
    4. Special state law considerations
  3. Recent case law developments

Benefits

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?

Faculty

Peterson, Ronald
Ronald R. Peterson
Partner
Jenner & Block

Mr. Peterson concentrates his practice in the areas of commercial, insolvency and bankruptcy law. A fellow of the...  |  Read More

Silver, James
James D. Silver
Partner
Kelley Kronenberg

Mr. Silver is a Partner in the firm’s Fort Lauderdale office and heads the firm’s Commercial Creditors...  |  Read More

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