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Barry M. Klayman and Mark E. Felger Barry M. Klayman and Mark E. Felger

In a somewhat unusual case, Vice Chancellor Morgan T. Zurn addressed the question whether in pari delicto is an equitable or a legal defense, in In the Matter of the Liquidation of Indemnity Insurance, C.A. No. 8601-VCZ, order preserving affirmative defense (Del. Ch. Oct. 4, 2019). In an earlier decision in the case, Zurn held that the claimant had brought a purely legal claim and that equitable defenses were unavailable to bar the claim even when that legal claim was brought in a court of equity. Whether the defense of in pari delicto was a legal or equitable defense would determine whether it could be asserted in the case before her.

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