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Skating On Thin Ice: The Risks of Insuring Failing Businesses

Skating On Thin Ice: The Risks of Insuring Failing Businesses. Skating on Thin Ice: Risks of Insuring Failing Businesses. MODERATOR: Joe Kingma, Esq., Partner, Carlock Copeland Semler & Stair PANELISTS:

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Skating On Thin Ice: The Risks of Insuring Failing Businesses

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  1. Skating On Thin Ice: The Risksof Insuring Failing Businesses

  2. Skating on Thin Ice: Risks of Insuring Failing Businesses MODERATOR: Joe Kingma, Esq., Partner, Carlock Copeland Semler & Stair PANELISTS: Kenneth Coffin, JD, Esq., Vice President, Professional Liability Claims, Liberty International Underwriters Kenneth N. Klee, Esq.,Partner, Klee, Tuchin, Bogdanoff & Stern, LLP; Professor, UCLA School of Law Ronald Klein, JD, CFE, Vice President, Claims Counsel, CAMICO Mutual Insurance Company Richard Levine, Esq., Chair, Bankruptcy & Insolvency Practice Group, Nelson Kinder Mosseau & Saturley PC

  3. Overview • Prologue: Professional Liability in Bankruptcy or Cracks Appear in the Ice • Act I: Mediation or Treading Water in the Frozen Lake • Act II: Throwing You a Lifeline • Takeaway Points • Questions and Answers

  4. Cast of Characters Ken Klee - Embattled Mediator and Introduction Rick Levine - Counsel for the Plaintiff Trustee Joe Kingma - Counsel for Defendant Accountant, Addemup Ron Klein - Vice President, Accounting Claims – Unlucky Insurance Ken Coffin - Vice President, Attorney Claims - Unlucky Insurance

  5. Prologue Ken Klee

  6. Professional Liability in Bankruptcy • Breach of Fiduciary Duty • Aiding and Abetting Breach of Duty • Deepening Insolvency • Malpractice

  7. Deepening Insolvency • Cause of Action • Measure of Damages • A Nullity • Choice of Law • Who Has Standing to Assert • In Pari Delicto Defense

  8. In Pari Delicto Defense • Equitable Defense Based on Unclean Hands • Applies Unless an Exception Negates it • Adverse interest exception • Sole actor exception to exception • Innocent decision-maker exception • Control person exception • Assignment of creditor actions to trustee

  9. Act I Treading Water in the Frozen Lake or Mediation of the Trustee’s Claims Against Accountants and Lawyers

  10. Scene 1 Rick Levine, Counsel for the Plaintiff Trustee, Gives His Opening Statement at Mediation

  11. Scene 2 Joe Kingma, Counsel for the Accounting Defendant Addemup, Gives his Opening Statement

  12. Scene 3 Ron Klein (Accountants) and Ken Coffin (Attorneys) of Unlucky Insurance Meet Privately

  13. Scene 4 Mediator Ken Klee, Meets with Rick Levine, Counsel for the Plaintiff Trustee, in a Private Session

  14. Scene 5 Mediator Ken Klee, Meets with Joe Kingma, Counsel for the Accounting Defendant Addemup

  15. Scene 6 Mediator Ken Klee, Meets with Unlucky Insurance Representatives Ron Klein and Ken Coffin and Makes One Last Effort to Open Their Wallets

  16. Act II Throwing You A Lifeline

  17. Takeaway Points From Ken Klee

  18. Takeaway Points From Rick Levine

  19. Takeaway Points From Ron Klein

  20. Takeaway Points From Ken Coffin

  21. Takeaway Points From Joe Kingma

  22. Joe’s Takeaway Points I Underwriters - Watch for Failing Business Exposures Professionals Whose Client Base Includes: A.Homebuilders and Developers B. Auto Industry Suppliers C. Retailers • Lenders to A-C Take Deepening Insolvency Claims Seriously SOL Order for Relief Plus 2 Years (11USC108)

  23. Joe’s Takeaway Points II • Check Local Rule on Withdrawing Reference Under 28 USC§157(d) • Proof of Claim Keeps you in BK Court • Watch Out for 2004 Examinations • Trustees, Chief Restructuring Officers, and Receivers • Check Pacer for : • Special Litigation Counsel • Value of Claim • Assets to Prosecute

  24. Questions & Answers

  25. Many Thanks to • Joe Kingma, Esq. • Kenneth Coffin, JD, Esq. • Kenneth N. Klee, Esq. • Ronald Klein, JD, CFE • Richard Levine, Esq.

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