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Invoking In Pari Delicto to Bar Accountant Liability Actions Brought by Trustees and Receivers

2008, 2009, 2010, 2011

American Law Institute-American Bar Association (ALI-ABA) Accountants’ Liability Conference

Accounting firms often find themselves defending claims brought by their corporate clients or by plaintiffs standing in their clients’ shoes (e.g., a receiver, a bankruptcy trustee, or a litigation trust trustee), alleging that the accounting firm was either complicit in or failed to discover fraud or other wrongdoing within the client corporation. Because these kinds of claims involve misconduct within the corporate client, a threshold issue is whether the doctrine of in pari delicto might bar all of the corporation’s claims against the accounting firm. Although in pari delicto might be one of the strongest weapons in an accounting firm defendant’s arsenal in such a suit, prevailing on an in pari delicto defense requires an understanding of an interplay of various legal principles. This outline first discusses the nuts and bolts of the in pari delicto defense, then addresses the complications that arise when the defense is asserted against a corporation, and concludes with a discussion of the additional complications that arise when the defense is asserted against a bankruptcy trustee or receiver.

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