In Bash v. Textron Financial Corporation (In re Fair Finance Company), the Sixth Circuit Court of Appeals reversed a district court’s dismissal of a chapter 7 trustee’s civil conspiracy claim. The chapter 7 trustee had sued Textron Financial Corporation, alleging that Textron assisted in the debtor company’s concealment and perpetuation of a Ponzi scheme. Textron filed a motion to dismiss the chapter 7 trustee’s civil conspiracy claim, arguing that the in pari delicto (in a case of equal or mutual fault, equity favors the position of the defending party) defense barred the trustee’s claim. The Sixth Circuit reversed, holding that a plaintiff is not required to plead facts necessary to defeat an affirmative defense. The Sixth Circuit went on to hold that the Ohio Supreme Court, if faced with the issue, would adopt the “innocent insider” exception as it relates to the in pari delicto defense. In other words, in pari delicto may bar a trustee’s actions against third parties who participated in or facilitated wrongful conduct of the debtor. An exception to the in pari delicto defense is the adverse interest exception, which arises if a person is committing an independent fraudulent act on her own account. The adverse interest exception also has an exception known as the sole actor doctrine that arises if agents responsible for adverse conduct dominate and control the principal. And, finally, the adverse interest exception also has an exception, which is known as the innocent insider exception. This exception arises if an innocent person inside a company has the power to stop the fraud.
