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Safe Harbors Bankruptcy Code

Jones Day

First Impressions: Seventh Circuit Rules that the Bankruptcy Code's "Safe Harbor" for Securities Contracts Transfers Applies to...

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Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings...more

Troutman Pepper

What Are Some Less Traditional Defenses to a Preference Action? - Creditor’s Rights Toolkit

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The ordinary course of business, new value, and contemporaneous exchange for new value defenses are the most frequently used defenses in a preference action. However, there are additional, less common defenses that a...more

King & Spalding

The Seventh Circuit Upholds District Court’s Decision That Safe Harbor Provision of Section 546(e) Applies to Privately Held...

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A recent ruling from the United States Court of Appeals for the Seventh Circuit provides additional comfort for lenders receiving full repayment in connection with leveraged acquisitions. The U.S. Bankruptcy Code gives...more

Patterson Belknap Webb & Tyler LLP

Seventh Circuit Addresses Scope of Section 546(e)

We have previously blogged about the section 546(e) defense to a trustee’s avoidance powers under the Bankruptcy Code. A trustee has broad powers to set aside certain transfers made by debtors before bankruptcy. See 11 U.S.C....more

Cadwalader, Wickersham & Taft LLP

KYC – “Know Your Customer,” or Agent, or Financial Institution, to Qualify for the Bankruptcy Code Safe Harbors

Parties structuring certain financial transactions to comply with the Bankruptcy Code safe harbor provisions, including protections from the avoidance powers in Section 548 of the Bankruptcy Code, must be cognizant of recent...more

Jones Day

Second Circuit Adopts "Transfer-by-Transfer" Approach to Bankruptcy Code's Safe Harbor for Securities Contracts Payments

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The scope of the Bankruptcy Code's "safe harbor" shielding certain securities, commodity, or forward-contract payments from avoidance as fraudulent transfers has long been a magnet for controversy, particularly after the U.S....more

Goodwin

Complicit Defendants Lose, Sovereign Agency Wins in Eternal Madoff Litigation

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Two recent decisions in the Madoff bankruptcy cases illustrate that the legacy of Bernie Madoff will long survive the man himself. Bernie Madoff died on April 14, 2021, while incarcerated in the Federal Medical Center in...more

Jones Day

Business Restructuring Review September-October 2023 | Vol. 22 No. 5

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Section 546(e) of the Bankruptcy Code’s “safe harbor” preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings...more

Jones Day

Court's Broad Interpretation of Definition of "Securities Contracts" Promotes Expansive Scope of Bankruptcy Code "Safe Harbor"

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Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings...more

King & Spalding

Safe Harbor Provision of Section 546(e) Applies to Privately Held Securities

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On May 2, 2023, the U.S. District Court for the Southern District of Indiana reversed a bankruptcy court, finding that Section 546(e) of the Bankruptcy Code preempts state law fraudulent transfer claims and that the...more

Bracewell LLP

546(e)’s Not-So-Safe Harbor: Second Influential Judge Echoes Concerns that Broad Exemption Shelters Pirates

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Delaware Judge Brendan Shannon has joined calls for reforming Section 546(e) of the bankruptcy code, echoing concerns that the section’s safe harbor from fraudulent transfer liability has allowed investors to “loot privately...more

A&O Shearman

Judge Drain Tackles Private Equity and Fraudulent Transfers in ‘Tops’ Decision

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On October 12, the Honorable Robert D. Drain, U.S. Bankruptcy Judge for the Southern District of New York, issued his final decision from the bench in the bankruptcy cases of supermarket chain Tops Holdings II Corporation...more

Bracewell LLP

Parting Advice: Judge Drain Rules That Dividends Paid From the Proceeds of Safe-Harbored Transactions Are Not Safe-Harbored in In...

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In his final opinion, Judge Robert D. Drain of the United States Bankruptcy Court for the Southern District of New York held that dividends paid from proceeds of safe-harbored transactions under section 546(e) of the...more

Nelson Mullins Riley & Scarborough LLP

Bankruptcy Court Narrowly Construes Section 546(e) Safe Harbor

On August 18, 2022, the United States Bankruptcy Court for the Southern District of Indiana, in In re BWGS, LLC, No. 19-01487-JMC-7A, 2022 WL 3568045 (Bankr. S.D. Ind. Aug. 18, 2022), narrowly interpreted the safe harbor...more

McGlinchey Stafford

Do I have standing to bring a declaratory judgment action? - McGlinchey’s Commercial Law Bulletin - September 7 2022

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Unambiguous Contract Language- Lake Breeze Condo. Homeowner’s Ass’n v. Eastlake Ohio Developers, LLC, 11th Dist. Lake No. 2022-Ohio-3002. In this case the Eleventh Appellate District affirmed in part and reversed in...more

Bracewell LLP

Better Late Than Never: Delaware Bankruptcy Court Determines That 546(e) Avoidance Safe Harbors Are Available to Defendants That...

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Following an August 4, 2022 memorandum opinion from Judge Brendan L. Shannon of the United States Bankruptcy Court for the District of Delaware, a party to a safe harbored contract can qualify as a “financial participant”...more

Jenner & Block

Recent Developments in Bankruptcy Law Update - July 2022

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Covered Activities - 1.1.a Order granting counterclaim declaring validity of mortgage on the debtor’s property does not violate the stay. The debtor acquired property subject to a disputed mortgage. The debtor brought a...more

Morgan Lewis

Tribune: Lessons Learned and Relearned

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This is how Tribune ends: not with a bang, but a whimper. The 12-year litigation saga, rooted in the spectacular failure of the media and sports conglomerate’s 2007 leveraged buyout, reached an end in late February with a...more

McGuireWoods LLP

U.S. Supreme Court Declines Review Ending Shareholder Fraudulent Transfer Litigation in Tribune

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After more than a decade, litigation resulting from the failed leveraged buyout (LBO) of media giant Tribune Company has finally drawn to a close. On Feb. 22, 2022, the U.S. Supreme Court declined to review the latest...more

Jones Day

Another New York District Court Widens the Bankruptcy Code's Securities Contract Safe Harbor

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In 2019, the U.S. Court of Appeals for the Second Circuit made headlines when it ruled that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout ("LBO") of Tribune Co. ("Tribune") were...more

Jones Day

Setoffs Under Shari'a-Compliant Investment Contracts Not Safe Harbored in Bankruptcy

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In In re Arcapita Bank B.S.C., 2021 WL 1603608 (Bankr. S.D.N.Y. Apr. 23, 2021), the U.S. Bankruptcy Court for the Southern District of New York addressed the interaction between purported setoff rights arising under...more

Jones Day

Business Restructuring Review | May–June 2021

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In This Issue: First Impressions: Third Circuit Scuttles Triangular Setoff in Bankruptcy - In In re Orexigen Therapeutics, Inc., 990 F.3d 748 (3d Cir. 2021), the U.S. Court of Appeals for the Third Circuit ruled as a...more

Jones Day

First Impressions: Third Circuit Scuttles Triangular Setoff in Bankruptcy

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The ability of a creditor to exercise its contractual, common law or statutory rights under non-bankruptcy law to set off amounts owed to a debtor in bankruptcy against the debtor's obligations to the creditor gives...more

Dechert LLP

Does Section 546(e) Bar Foreign Law Avoidance Actions in Chapter 15?

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Turns out, it depends on who you ask. Judge Bernstein said no. Recently, Judge Glenn said yes, but only for causes of action that resemble actual fraudulent transfers. It is unusual for the bankruptcy judges in Manhattan to...more

Dechert LLP

A Recent Ruling that Shari’a Compliant Investment Agreements Do Not Qualify for Safe Harbor Treatment May Have Broader...

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In a first, the Bankruptcy Court for the Southern District of New York in the Arcapita Bank case had to decide whether Shari’a compliant investment agreements, providing for Murabaha and Wakala transactions, qualify for the...more

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