Claim dismissed where Bankruptcy Trustee failed to act to preserve rights

Karen Auday declared bankruptcy after losing her job with Wet Seal Retail, Inc. She did not disclose a potential age discrimination claim on her initial bankruptcy filing, however, and the employer used this omission to argue that Auday's wrongful discharge claim actually belonged to the bankruptcy trustee. Even though Auday's attorney advised the Trustee of the pending claim within months, the Trustee did not amend the Bankruptcy proceedings to list the discharge/discrimination claim as an asset or to authorize her to pursue it: on that basis the Federal Court ruled that Auday could not pursue her claim because it no longer belonged to her. The Court did hold open the potential to amend the complaint in the lower court to substitute the Trustee as the real party in interest.