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See In re CBI Holding Co., __ F. 3d __ (2d Cir. 6/16/08) (holding adverse interest exception to In Wagoner rules applies under the facts of the case); In re Oakwood Homes Corp., __ B.R. __(D. Del. 6/9/08) (applying in pari delicto to investment bank; bank was not insider because it lacked control; debtor has at .least as much responsibility as bank); In re Bridgeport Holdings, Inc. __ B.R. __ (Bk. D. Del. 5/30/08) (sustaining complaint for breach of fiduciary duty even though no self-dealing; complaint alleged abdicating decision making to restructuring advisor and failing to monitor execution of sell strategy resulting in sale for inadequate consideration).
Recent deepening insolvency cases include In re Senior Cottages of America, LLC, 482 F.3d 997 (8th Cir. 2007) (distinguishing in pari delicto from standing; trustee can assert claim against former attorneys for aiding and abetting breach of fiduciary duty and legal malpractice); In re MS 55, Inc., 477 F. 3d 1131 (10th Cir. 2007) (chapter 7 trustee was barred from asserting claims against creditor where chapter 11 debtor waived claims; chapter 11 committee was authorized to assert claims, but it no longer existed); In re CITX Corp., 448 F.3d 672 (3d Cir. 2006) (no claim for deepening insolvency based on negligence; no damages for deepening insolvency because debtor got more money); Baena v. KPMG LLP, 453 F.3d 1 (1st Cir. 2006) (applying in pari delicto to action under deceptive practices statute; adverse interest exception not applicable because debtor received benefits and "sole decisionmaker" rule n/a under Massachusetts law); Trenwick American Litigation Trust v. Ernst & Young, L.L.P., 906 A.2d 168 (Del. Ch. 2006) (rejecting deepening insolvency concept as inconsistent with Delaware law and contrary to statutory and charter protections for directors against liability for negligence). See generally In re Greater Southeast Community Hosp. Corp. I, 353 B.R. 324 (Bk. D.D.C. 2005) (deepening insolvency treated as theory of harm not a separate cause of action; no adverse interest exception to in pari delicto when actions clearly undertaken to benefit debtors; good general discussion of deepening insolvency and in pari delicto); In re Avado Brands, Inc., 358 B.R. 868 (Bk. N.D. Tex. 2006) (no tort of deepening insolvency would be recognized in Georgia; suit by liquidating trustee against former officers and directors for breach of fiduciary duty); In re Promedicus Health Group, LLP, 359 B.R. 45 (Bk. W.D.N.Y. 2006) (action by trustee of LLP against law firm which allegedly aided and abetted managing partners in fraudulent and wrongful conduct toward creditors; held, trustee lacks standing because of Wagoner doctrine in that all partners had either (1) been involved in the wrongdoing, (2) availed themselves of the fruits of the wrongdoing or (3) abandoned the LLP without trying to stop the wrongful conduct); In re Scott Acquisition Corp., 364 B.R. 562 (Bk.D. Del. 2007) (applying Florida law and holding claim against attorneys for aiding and abetting transactions involving debtor and insiders and claims for legal malpractice and breach of fiduciary duty were subject to the in pari delicto defense); In re Amcast Ind. Corp., 365 B.R. 91 (Bk S.D. Ohio 2007) (no claim of deepening insolvency under Ohio law); In re James River Coal Co., 360 B.R. 139 (Bk. E.D. Va. 2007) (no tort of deepening
