Nifong's stalling in bankruptcy.

Former Durham NC DA Mike Nifong filed for bankruptcy, rather than file an answer to the civil suit against him (and a lot of others) for the wrongs done the Duke lacrosse players.

All he's really doing, as far as I am concerned, is stalling and trying to get a bit of a fresh start, so he can have something resembling a future.  I'll explain why his bankruptcy is not likely to change the result but will drag things out, below.

That said, I cannot fault him for filing.  He had to, to protect himself against the suit so he could have some hope of a future.  If he gets through the bankruptcy to a discharge, that which the discharge can wipe out, is wiped out forever.  He could hit the lottery tomorrow and it would not be subject to the discharged part of the judgment - because it would be "post-petition".  Bankruptcy gives a "fresh start" with a (relatively) clean slate, so I cannot fault him for filing, regardless.


I've been around this block before in my practice - and Nifong's not going to wipe this suit out by filing for bankruptcy.  Little bits and corners - yes.  But all of it?  No.  Still, he's likely bought a good year and a half by filing it.

Here's some whys and wherefores.

#1.  Generally, intentional torts cannot be wiped out through bankruptcy.  

Reviewing the causes of action alleged, the vast majority of them are not negligence-based causes of action.  Rather, they allege intentional torts.  (Indeed, a civil rights claim under 42 USC 1983, 1985, or 1986 cannot, per S.Ct. precedent, be other than an intentional tort.)

Basic bankruptcy law:  with a nod of the judicial head to state law (and a need to review the issue through the lens of state law), the vast majority of intentional torts are "claims" (a term of art in bankruptcy) of a sort which cannot be "discharged" (another term of art, meaning "wiped out") by a bankruptcy.  Last time I checked, that would be under 11 USC 523(a)(2), (4) or (6) and the many cases interpreting those statutes.

Be mindful, though, that the scope of the discharge varies depending upon the Chapter (7, 11, 13) of the Bankruptcy Code under which Nifong filed.  Last time I checked, there was a cap of about $250k or $500k on liabilities for filing a Chapter 13 (the so-called "payment plan" bankruptcy), and Nifong's liabilities may have been over the amount allowed in a 13.  Chapter 13 is the "best" for a debtor, because the scope of the discharge is broadest and some liabilities for intentional acts are dischargeable in a 13 (but not in a Chapter 7).

It looks like he's under the floor of asset value where the law would require him to file a Chapter 11 - and he really wouldn't want to do that because in filing an 11, your creditors decide how to carve you up (with votes proportional to the amounts they're owed).

#2.  Some of the causes of action involve fraud.  Fraud cannot be wiped out through bankruptcy.

Basic bankruptcy law:  there is almost no circumstance under which "fraud" can be discharged through bankruptcy.  See 11 USC 523(a)(2), (4) or (6) and Cohen v. DeLa Cruz, 523 US 213, 118 S.Ct. 1212 (1998).

So, Nifong's bankruptcy petition is almost certainly not going to insulate him from those fraud-based causes of action.

#3.  Some of the causes of action involve negligence.  Some (i.e., most) negligence causes of action can be wiped out through bankruptcy.

Negligence is insurable.

Basic bankruptcy law:  Most negligence-based causes of action are dischargeable through bankruptcy.  But, when there is a dischargeable negligence-based claim and there exists insurance coverage which can be used to insure against the bankrupt's liability for that claim, then the bankruptcy court will likely do two things.  

First, the court will grant the creditors (plaintiffs in the suit) relief from the "automatic stay".  The automatic stay is an automatic injunction the bankruptcy court issues upon filing the bankruptcy petition.  It stops all proceedings against the debtor (in or out of court) in their tracks.  The relief from the stay would allow the plaintiffs to pursue the negligence-based claims against the debtor (Nifong) up to the limits of the insurance coverage.  Since the proofs of liability would be the same regardless of the amount of damages, there's no insulation for Nifong against the discovery and all the proceedings leading to the judgment.

Second, the Court would discharge that part of the claim in excess of the coverage amount.  

In other words, where Nifong would have been liable for negligence, the plaintiffs could collect (assuming they prove their case) up to the limits of insurance coverage.  But they could not gain, nor collect the "excess judgment", the uninsured amount of any judgment beyond the insurance coverage, which Nifong would have been liable for personally.

So, the first issue will be:  how much of Nifong's conduct was alleged to be "negligent".  Note that the same conduct can be alleged to be "negligent" and "intentional" at the same time - that's what the civil rules call "pleading in the alternative".  If it isn't negligent, go back to #1 above - intentional conduct is not dischargeable.  

The second issue will be:  how much of Nifong's conduct that is determined to be "negligent", is covered by insurance.  Nifong's insurance company (companies) will promptly (if it hasn't already) file a declaratory judgment action claiming Nifong is not covered by them for anything.  Ditto the insurance company for Durham and any other entity which might have provided insurance coverage to Nifong.  The basis for denying coverage to Nifong would be that his acts were criminal, or beyond the scope of the policy coverage.  It's weedy in the extreme - this is where lawyers and judges get to interpret insurance policies.  

In the more run-of-the-mill case, say, a bad car accident with a driver who had a minimum-limits policy, where coverage was not an issue, often the insurance company would pay the policy limit into court (i.e., deposit the money with the Court).  They would then fight about liability, but probably not too hard.  Paying the policy into court would (a) cap their liability to defend their insured, (b) in many states end the running of prejudgment interest, © pretty much preclude a "bad faith refusal to settle" claim against the insurer (which would expose them to liability in excess of their policy limits), and (d) make the suit pretty much go away.  If one existed, it would also permit them to litigate the coverage issue - whether they were obligated to defend and indemnify their insured - more freely.  

In this case, I don't see anyone paying their limits into Court, save maybe Nifong's malpractice and/or personal/homeowners' carriers.  (You'd be surprised what some homeowners' policies can cover....)

The third issue, in two parts:  Whether other entities are liable respondeat superior for Nifong's conduct, and the scope of the other entities' coverage.  If Durham was self-insured and that coverage extended to Nifong, it is conceivable there would be no limits on the coverage since the municipality would have the ability to go to its taxpayers and make them ante up for any judgment.  So, the plaintiffs could get relief from the stay to the full amount they seek.

But, even that might not stop the suit.

And, alternatively, they might bankrupt Durham but not Duke.  This, below.

#4  Conspiracy liability.  Think "joint and several liability, on steroids".

Throughout the complaint, there are repeated references to, and pleading of, a series of conspiracies involving the defendants.  There are a couple common-law (and this varies from state to state - so be careful) principles regarding common-law civil (not criminal) conspiracy.

First, all conspirators are liable for the whole amount of damages from the conspiracy.

Second, the plaintiffs injured by a conspiracy can collect from one conspirator, and leave to the various parties to the conspiracy to sort out among themselves how to apportion the amount due.  In other words, the rich co-conspirator will have to pay, and then collect from the others in proportion to their culpabilities.

Third, to prove a civil conspiracy (such that they can recover money) the plaintiffs have to prove both the underlying tort and the conspiracy.  

What this means, in short, is that to the extent Nifong's conduct was part of a conspiracy, and to the extent the plaintiffs can prove others' involvement in the same conspiracy (it appears there are likely to be lots of conspiracies intersecting here), the others are also liable for the damages Nifong's conduct caused.

Or, in short, that the Bankruptcy court will likely be able to (not that it will) regard the wealth of Durham and Duke as, effectively, insurance potentially covering Nifong's tortuous conduct.

So, while Nifong may have just kicked over a hornet's nest of litigation over the policies of insurance, self-insurance, and bankruptcy issues, all he's really done is tie things up.  Since the amounts involved are so large, there will be numerous appeals, a lot of papers filed, and so on, and this will all take a good year and a half to work out.  But, in the end, the wealthy defendants will find themselves defending the suits.

I'd bet the Duke Lacrosse players will have to wait a good 10 to 15 years (maybe 20 - the Exxon Valdez case is still pending before the Supreme Court) before ever even thinking about cashing a check from this case.

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    funny, (none / 0) (#1)
    by cpinva on Wed Jan 16, 2008 at 07:58:41 AM EST
    that's exactly what i started thinking, about halfway through your post.

    I'd bet the Duke Lacrosse players will have to wait a good 10 to 15 years (maybe 20 - the Exxon Valdez case is still pending before the Supreme Court) before ever even thinking about cashing a check from this case.

    i didn't notice any reference to his assets (i suspect they're negligible, by comparison to his listed liabilities), any idea what the homestead exemption amount and items are, under NC law?

    also (hey, i do tax law, not this other stuff!), since there's no actual judgments yet, in any of these cases, is including the amounts, as part of his listed liabilities, at all considered an admission of guilt, as far as the civil suits are concerned?

    The lawyers will make careers off this case - (none / 0) (#2)
    by scribe on Wed Jan 16, 2008 at 01:17:13 PM EST
    you can be sure about that.

    As to your first question:

    any idea what the homestead exemption amount and items are, under NC law?

    Answer:  no. [N.B.  TL's main post on this indicates his assets in the $250k range, which I'd assume (not having downloaded or read the schedules) include whatever equity he has in his house, and likely address (or will) the homestead exemption.  But, IIRC, NC's exemption is nowhere near the exemption given by Texas or Florida.]

    As to your second question:

    since there's no actual judgments yet, in any of these cases, is including the amounts, as part of his listed liabilities, at all considered an admission of guilt, as far as the civil suits are concerned?

    Answer:  no.  The suits and possible judgments from them would be listed under the heading of "contingent liabilities".  In other words, potential liabilities which haven't yet ripened into anything remotely collectible, and might never get there.  Because they'd be categorized as "contingent", all his filing would admit (to the extent it admits anything) is (a) he's been sued, (b) the suit claims he owes many, many dollars, and (c) the suit is presently unresolved.

    that's what i thought too. (none / 0) (#6)
    by cpinva on Sat Jan 19, 2008 at 12:11:43 AM EST
    generally speaking, contingent liabilities, absent some compelling reason (your atty. tells you that hell freezing over won't keep you from losing), are generally tossed out, for tax, GAAP and lawsuit purposes. a court accepting them is practically an admission that you fully expect to be on the losing end of a case.

    the sad part of all this is that so many lives (including nifong's and his family's) have been irrevocably damaged by this. before you jump all over me, i think what he did was one of the most outrageous acts of prosecutorial misconduct i've seen/heard about, ever.

    that said, he apparently was a pretty straight shooter, before this case. you have to wonder what short-circuit in his brain caused him to go over the edge?


    Not when there's (none / 0) (#4)
    by scribe on Wed Jan 16, 2008 at 04:59:48 PM EST
    $180 mil and the reputation of Duke at stake.

    I've seen at least one fight over much, much less go on longer than that.


    Fresh Start? Smoking gun would better! (none / 0) (#5)
    by ClintonIsTheDevil on Thu Jan 17, 2008 at 01:49:52 AM EST
    Here's the real deal.  The man broke the law knowinly.  Ruined three kids lives. Broke his oath.  We could go on and on.  Lets make it is for him,  give him one gun, one bullet and see if he cannot screw it up.  

    Rice 2012