One of Diamond McCarthy’s largest core practice area focuses on representing trustees, liquidators, receivers, private equity and hedge funds, financial institutions, creditors’ committees, debtors and other clients in complex bankruptcy and insolvency litigation, especially legal actions relating to “who and what killed the company?”. We have a global reputation and track record in litigating many of the most difficult and high-profile cases arising out of large-scale corporate bankruptcies and international insolvency matters.
Our premier practice is well-known for developing innovative litigation strategies aimed at recovering, protecting and preserving company assets in Chapter 7 and 11 bankruptcy cases, Chapter 15 ancillary proceedings, international insolvency matters and other financially-distressed scenarios. With offices strategically located in New York, Texas and California, we have the firepower and resources to litigate high-stakes disputes across the U.S., and our vast global network of foreign counsel enables us to handle far-reaching cases where clients, transactions, courts and witnesses cross borders.
Our team of trial lawyers prosecutes claims covering a broad spectrum of business torts and misconduct issues that arise in bankruptcy and insolvency cases, including director and officer liability, professional malpractice, breach of fiduciary duties, fraud, aiding and abetting, conspiracy and banking liability. We also handle large portfolios of fraudulent transfer, preference and other Chapter 5 avoidance claims, financial controversies involving distressed debt and equity securities, and the full gamut of contract, insurance, licensing and other business disputes.
We have resolved difficult litigation spanning a number of market sectors, from financial services, banking, energy, oil and gas, chemicals, plastics and environmental to healthcare, steel, retail, technology, transportation, agro-foods and real estate. With our diverse industry experience, we can tackle complex regulatory issues that often impact bankruptcy and insolvency matters.
Complex Litigation Relating to “Who and What Killed the Company?”
Diamond McCarthy built its reputation on being fearless and conflict-free to pursue massive cases where “who and what killed the company” is a common theme. This has become a household phrase used throughout the industry to describe cases of considerable size and scale when there is no longer a company to “bet the house.”
Investigating what led to a company’s demise is an extremely challenging and time-intensive process. Key witnesses have left the company and relocated, thousands of important records are stored in warehouses and electronically, and the trail often goes across the U.S. and abroad. The process is even more difficult when fraudulent schemes, gross negligence and other unlawful activities triggered the company’s collapse, and the responsible parties went to great lengths to cover their tracks of ill-gotten gains.
Our team is highly skilled in dissecting the sequence of events that resulted in a company’s failure, identifying culpable parties, and pursuing all available damages through asset recovery, negotiations and tenacious advocacy in the courtroom. In virtually every case, misconduct by company insiders and outside professionals takes center stage, typically in connection with failed corporate transactions and/or various types of financial fraud.
As we uncover wrongdoing by company insiders, we are methodical and highly effective at ensuring they are held accountable while recoveries are achieved. We have significant experience handling cases involving director and officer misconduct that contributes to corporate insolvencies, from negligence, breach of fiduciary duties, self-dealing and conflicts of interest to intentional wrongdoing such as Ponzi schemes, misappropriation of assets, fraudulent transfers, securities fraud and money laundering.
Our lawyers have in-depth knowledge of director and officer protection statutes across many jurisdictions. We excel at maneuvering through the window between the business judgment rule and intentional dishonest acts to implicate Directors & Officers Liability Insurance policies in violation of duties of care (e.g., gross negligence and recklessness) and loyalty (e.g., self-dealing and conflicts of interest).
We also prosecute malpractice claims against professionals that commit misdeeds and become entangled in these situations, including auditors and accountants, lawyers, asset and solvency valuation firms and banking professionals that advise on financial transactions, investments and valuations. Our team has resolved litigation concerning every type of professional misconduct, including when they are complicit in illegal transactions, look the other way, are careless in failing to detect wrongdoing or provide negligent advice, opinions or services.
International and Cross-Border Capabilities
Diamond McCarthy has substantial experience playing lead or significant roles in international litigation and insolvency matters, including cases involving cross-border joint protocol and enforcement and collection of foreign assets, among many others. We have developed a large network of foreign counsel through decades of international practice, allowing us to provide end-to-end dispute resolution capabilities in key jurisdictions around the world, including Europe, Asia, South and Latin America, the Caribbean, the Middle East, Africa and the CIS.
Our team has deep knowledge and experience concerning U.S. and international litigation procedures, such as forum non conveniens, rules of jurisdiction, extra-territorial statutory paradigms, Mareva proceedings, and the role of international treaties. We have also resolved numerous disputes under the major international arbitration frameworks, including ICSID, ICC, LCIA, UNCITRAL, SCC, SIAC, HIAK, ICDR and others.
Our international lawyers are multilingual, culturally diverse and admitted to practice in several jurisdictions. Many have also lived and worked abroad, enhancing our understanding of the cultures, politics, legal systems and economic factors that are important to any case with international ramifications.
We Are Free to Litigate Against All Adversaries
Diamond McCarthy generally has no conflicts to prosecute claims against: (1) directors and officers of large corporations; (2) global, national and regional professional services and consulting firms; and (3) the major banks that are typically secured creditors in corporate bankruptcy and insolvency matters. Indeed, pursuing these claims is a large component of our practice.