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  • Jeff Vail

Unclean Hands (Affirmative Defense)

The doctrine of unclean hands is an affirmative defense that “prevents one who has engaged in improper conduct regarding the subject matter of the cause of action, to pursue the claim at issue.” Sender v. Mann, 423 F. Supp. 2d 1155, 1167 (D. Colo. 2006). Importantly, the affirmative defense of unclean hands “applies only to equitable [claims for relief].” Id. The similar defense of in pari delicto (“in equal fault”) can be seen as the counterpart affirmative defense applying to claims at law. See, e.g., Hollander v. Zito, No. 11-cv-00499-MSK, 2011 WL 5834688, at *5 (D. Colo. Nov. 21, 2011).

The elements of the defense of unclean hands are:

(1) Plaintiff is guilty of conduct involving fraud, deceit, unconscionability, or bad faith;

(2) This conduct by plaintiff directly relates to the matter at issue;

(3) This conduct injured the defendant; and

(4) This conduct affected the balance of equities between the litigants in such a way that, in light of plaintiff’s conduct, plaintiff should not be permitted any remedy against defendant in equity.

Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 3522409, at *3 (D. Colo. Aug. 11, 2010) (citing In re New Valley Corp., 181 F.3d 517, 523 (3d Cir. 1999)).

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