Commercial Fraud

This panel explores issues that arise in fraud-based bankruptcy cases from both legal and financial perspectives, including managing a case when the fraudsters may still be around, dealing with fraudulent books and records, preserving the value of the business, investigating and litigating fraud and related claims, and working with (or against) the DOJ and other law enforcement agencies.Learning Objectives:Attendees will identify common indicators of fraud in bankruptcy cases and evaluate the legal and financial challenges that arise when fraud is suspected or confirmed.Attendees will analyze strategies for preserving estate value, managing unreliable books and records, and conducting investigations in fraud-based bankruptcy proceedings.Attendees will assess the tools available for pursuing fraud-related claims and understand the roles of the U.S. Department of Justice and other law enforcement agencies in bankruptcy cases involving alleged misconduct.

This panel explores how theft by contractor claims intersects with nondischargeability actions, including fiduciary defalcation and fraud theories.Learning Objectives:Attendees will analyze theft by contractor claims in the construction context and assess how such claims give rise to nondischargeability litigation under the Bankruptcy Code.Attendees will evaluate the legal standards applicable to fiduciary defalcation, fraud, and related causes of action in contractor-debtor disputes.Attendees will examine litigation strategies, evidentiary considerations, and practical advocacy techniques used in prosecuting and defending theft by contractor nondischargeability actions.

This session will explore the complex legal doctrines that define the rights and limitations of trustees and debtors in bankruptcy. The panelists will examine when trustees and debtors step into the shoes of the debtor, including how pre-petition rights and defenses impact the estate. The discussion also will analyze the application and limits of the in pari delicto doctrine, along with potential workarounds, and provide a close look at the Barton doctrine — its reach, exceptions, and whether protections continue after case closure. In addition, the panelists will consider the implications of the Fifth Circuit’s recent Highland Capital Management decision, including how gatekeeper provisions may reshape Barton protections for post-confirmation estate representatives.

Hosted by the Emerging Industries & Technology and Financial Advisors & Investment Banking Committees. This panel will explore the intricate landscape of recent crypto-related bankruptcies through a multi-faceted lens. The panelists will examine the fast-paced world of on-chain tracing and flow-of-funds analysis, the unique valuation challenges posed by highly volatile digital assets, and the shifting regulatory environment impacting insolvency proceedings. Illustrative case studies from prominent bankruptcies will ground the discussion, offering practical insights into how legal, financial and technical teams are adapting to these emerging challenges.

Hosted by the Bankruptcy Litigation and Commercial Fraud Committees. This interactive session will take a practical approach to exploring best practices in bankruptcy litigation, with a particular emphasis on fraud-related claims. Using hypothetical fact patterns, the panelists will guide attendees through key phases of contested litigation — from the initial investigation and assessment of potential claims to courtroom strategy and trial execution. Topics will include evaluating causes of action and defenses, drafting effective complaints, managing motion practice and employing persuasive techniques in the courtroom, including opening statements, witness examinations and evidence presentation. Whether dealing with traditional bankruptcy disputes or complex fraud allegations, attendees will gain valuable insights into prosecuting and defending litigation in the bankruptcy context.

This panel, featuring a former U.S. Attorney, bankruptcy trustee and examiner, will cover such key topics as mail/wire fraud, concealment of assets, false statements, perjury and the Fifth Amendment as they relate to crimes in bankruptcy to help keep bankruptcy practitioners and their respective clients out of trouble.

This panel will delve into the legal and practical issues surrounding subsequent-transfer claims under § 550(a)(2) of the Bankruptcy Code, and examine such key issues as the scope of liability for immediate and mediate transferees, the standards courts use to determine who qualifies as a subsequent transferee, and the statutory defenses available to those parties. The discussion will include recent case law developments, practical considerations in pleading and proving such claims, and common pitfalls in litigation.

This panel provides an in-depth, dynamic discussion on (1) forensic analyses employed to identify and untangle fraud and maximize recoveries; (2) standing to bring certain claims in fraud cases; (3) claims often pursued in Ponzi and other fraud cases, including aiding and abetting fraud, aiding and abetting breach of fiduciary duty, and conspiracy; (4) the Ponzi scheme presumption, clawback and defenses; and (5) in pari delicto and its applicability, along with other potential defenses. The panelists highlight and address recent case law developments in fraud cases and their impact on the various constituencies involved.

Hosted by Commercial Fraud & Ethics and Professional Compensation Committees This session will provide an overview of recent high-profile cases, including those of FTX, Kenneth Chesebro, Rudy Giuliani and Judge David R. Jones, and discuss the ethical issues raised, including the limits of advocacy, responsibility of the profession, duty of candor and truthfulness, prohibition on assisting in criminal activity, and the duty to report professional misconduct.

This panel will explore recent trends in commercial fraud and the resulting bankruptcies, examine the role of technology in those cases, and consider how these cases will evolve in the future.