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In August 2001, BCP publicly announced accounting irregularities and subsequently restated its 2000 and first quarter of 2001 financial statements. When deciding such a motion, the Court accepts as true all allegations in the complaint and draws all reasonable inferences from it which the Court considers in a light most favorable to the plaintiffs. Pw C also argues that under the terms of the Plan the claims were released. Pw C relies on a recent Delaware Supreme Court ruling that it asserts clarifies the standard for determining whether an alleged claim is direct of a partner or derivative of the partnership. Donaldson, Lufkin & Jenrette, the court held: That issue must turn solely on the following questions: (1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)?Pw C's motion papers set forth the following grounds upon which it asserts it is entitled to have the Complaint dismissed: the negligence claim is derivative of BCP such that BCPM LLC lacks standing to assert it; the claims are precluded by BCP LLC's release of claims or by the Plan's exculpation clause; the Complaint should be dismissed either by reason of res judicata or estoppel; and BCPM LLC has failed to properly plead the elements of a fraudulent conveyance action. A motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) serves to test the sufficiency of the complaint. An individual partner may not bring a claim in its own name that seeks recovery of a wrong inflicted upon the partnership. That is, a court should look to the nature of the wrong and to whom the relief should go.
The Complaint also seeks ,500,000 as damages allegedly resulting from Pw C's negligence in the performance of its prepetition services to BCPM.at ¶ 20.) My reading of the Complaint is that BCPM LLC is not alleging that negligent performance caused injury to BCPM with respect to its investment/equity interest in BCP.Rather, it is alleging that BCPM paid Pw C to perform professional services for BCPM and those services were negligently performed such that Pw C should be required to respond in the form of a disgorgement of the payments and also to make BCPM LLC whole with respect to expenses incurred by BCPM in paying for alternative accounting professionals to correct what Pw C allegedly did wrong.On April 1, 2003, BCP LLC commenced an adversary proceeding action against Pw C to recover alleged preferential transfers made by BCP totaling 0,509.20.On November 7, 2003, BCP LLC and Pw C entered into a settlement agreement with respect to that preference action.