Bank of America and Fifth Third Bank cannot be held responsible for a $70 million fraud committed by executives of Concord Capital Management because the insurance premium finance company benefited from the scheme, a New York state appellate court unanimously ruled on Jan. 3.
Munger, Tolles & Olson’s Randall G. Sommer represented Bank of America. Mr. Sommer argued that in pari delicto — which prevents an admitted wrongdoer from suing a party alleged to be equally or less culpable — barred the claims at the pleading stage because Concord conceded it received millions of dollars in fees from the transactions at issue in the litigation.
The 5-0 ruling affirms the prior dismissal of Bank of America on the pleadings by the trial court on the same grounds.
Mr. Sommer is a complex commercial litigation partner in the Los Angeles office of Munger Tolles.