(n186) To date, actions by the FDIC against auditors of insolvent savings and loans have not been third party suits. Rather, the government sues "in its capacity as regulator of the thrift industry" or in its capacity as "appointed conservator or receiver." Jeffrey N. Leibell, Note, Accountants' Liability in the Savings and Loan Crisis: An Argument in Favor of Affirmative Defenses, 1991 COLUM. Bus. L. REV. 71, 74. Recently, the latter strategy was struck a blow when a federal district court granted an auditor's motion for summary judgment on the theory that the single owner management of Western Savings and Loan had no cause of action against the thrift's auditor, thus, neither did the FDIC as receiver. The reason why the court found that management's suit would have failed was that management was already aware of everything the auditor could have told it. See Sherry R. Sontag, Audit Ruling May Portend Other Losses, NAT'L L.J., October 28, 1991, at 3 (discussing FDIC v. Ernst & Young, No. 3-90-0490 (N.D. Tex., Sept. 29, 1991)). With respect to its role as regulator, the FDIC "must prove defendants were unjustly enriched or recklessly disregarded laws or regulations--much tougher to prove than negligence, the standard for receiver suits." Id. But see Wade Lambert, FDIC is Cleared to Sue Law Firm For Negligence in S&L Fraud Case, WALL ST. J., July 1, 1992, at B4 (describing an even more recent decision against law firm in which court ruled that the "FDIC can't be resticted in pursuing negligence claims just because the former officers of the thrift were the people directly accused of the wrongdoing.").
If it were not for state law privily barriers, it would appear viable for the FDIC to bring suit against a thrift's auditor as a third party guarantor (i.e., guaranteeing the obligations of the thrift to its depositors to pay on demand with interest). There is, of course, a standing question, but it should be apparent that governmental loss, due at least partially to auditor negligence, would be both substantial and reasonably direct. Whether the auditors should be permitted in such an instance to raise the contributory negligence of the FDIC in its role as failed regulator of the failed thrift, is a question discussed in Leibell, supra, at 77-90.
(n187) This result would obtain if a lax management were to recover all its losses to third parties by successfully suing its negligent auditors for malpractice in actions if the plaintiff's laxness is precluded as a defense.
(n188) 345 N.W.2d 300 (Neb. 1984).
(n189) Id. at 306-07.
(n190) 450 So. 2d 1216 (Fla. Dist. Ct. App. 1984).
(n191) Id. at 1220. See also Capital Mortgage Corp. v. Coopers & Lybrand, 309 N.W.2d 922 (Mich. Ct. App. 1985) "With comparative negligence the result is not so harsh and the policy considerations that accountants should not be allowed to avoid all liability due to some negligence on the part of the client are not present." Id. at 925.
(n193) In the late 1970s, in several product liability eases, courts ostensibly apportioned damages using a theory of comparative causation, the most noteworthy being General Motors Corp. v.