The following excerpt is from Kirschner v. Large Shareholders (In re Tribune Co. Fraudulent Conveyance Litig.), 19-3049-cv, 19-449-cv (2nd Cir. 2021):
The in pari delicto doctrine acts as an affirmative defense to an aiding and abetting claim by barring a plaintiff "from recovering damages if his losses are substantially caused by activities the law forbade him to engage in." Stewart v. Wilmington Tr. SP Servs., Inc., 112 A.3d 271, 301-02 (Del. Ch.), aff'd, 126 A.3d 1115 (Del. 2015) (internal quotation marks omitted). In other words, a plaintiff can generally only sue for aiding and abetting a breach of fiduciary duty if the plaintiff's hands are clean. As applied to corporations, the illegal actions of a corporation's officers and directors are imputed to the corporation itself. Id. at 303. There are, however, exceptions that render the in pari delicto doctrine inapplicable and therefore permit a plaintiff to sue, even if its hands are not clean.
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