The increased numbers of bankruptcies and securities debacles in recent years, where the primary wrongdoers lack the resources to remedy all those who claimed to be injured, have led to increased efforts to hold more secondary parties—such as accountants, bankers and lawyers—responsible. These efforts, though, frequently have run into difficulties.
In many situations, creative efforts to extend liability to such additional parties have been stymied by restrictions imposed by developments under the securities laws.1 More generally, though, another stumbling block has been the “in pari delicto” doctrine, which itself has been the subject of much litigation in recent years, with courts in different jurisdictions taking different approaches.
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