News & Analysis as of

Securities Bankruptcy Code

King & Spalding

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

King & Spalding on

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

Venable LLP

Are Loans Securities? The United States Court of Appeals for the Second Circuit Responds in Kirschner v. JP Morgan Chase Bank,...

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On August 24, 2023, the United States Court of Appeals for the Second Circuit (the "Court") upheld the District Court's ruling in Kirschner v. JPMorgan Chase Bank, N.A. that notes issued as part of a refinancing transaction...more

King & Spalding

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

King & Spalding on

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

Dechert LLP

Mortgage Loan Repurchase Facilities: A Brief Overview of a Frequently Used Financing Structure

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A mortgage loan repurchase facility (more casually referred to as a “repo”) is a financing structure commonly utilized to finance mortgage loans. These facilities are utilized by both residential and commercial mortgage loan...more

Dechert LLP

Second Circuit Affirms Enforceability of Swaps’ Flip Provisions

Dechert LLP on

Swaps, together with repurchase agreements, forward contracts, securities contracts and commodities contracts receive special treatment under the bankruptcy code-they are largely exempt from the automatic stay, bankruptcy...more

Dechert LLP

Third Circuit Clarifies the Inner Workings of Foreclosure on Repo Collateral

Dechert LLP on

In the fifth opinion involving the repo liquidation saga of HomeBanc, the Third Circuit addressed several crucial issues involving the liquidation and valuation of repo collateral in bankruptcy. In re HomeBanc Mortg....more

King & Spalding

Advantages of Mortgage Repurchase Facilities

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The past decade has seen a marked expansion in the use of warehouse financing facilities utilizing repurchase agreements. These specific types of facilities need to be structured carefully but enjoy a number of benefits that...more

Latham & Watkins LLP

Supreme Court’s Merit Management Ruling Highlights Potential Alternative Path to Safe Harbor

Latham & Watkins LLP on

Possible application of Section 101(22)(A) to safe harbor’s covered entity requirement raises important questions for future transferee defendants. Key Points: ..Merit Management raises the possibility that customers of...more

Mintz - Bankruptcy & Restructuring Viewpoints

Supreme Court to Resolve Circuit Split on Scope of 546(e)’s Safe Harbor Provision

Earlier this month, the Supreme Court announced that it will review the scope of Bankruptcy Code section 546(e)’s safe harbor provision. Section 546(e) protects from avoidance those transfers that are made “by or to (or for...more

Perkins Coie

Blockchain and the Law - Overview of token sales and bitcoin property rights

Perkins Coie on

On March 29, 2017, Perkins Coie partner Dax Hansen and associate Josh Boehm were invited to the Cyber Initiative at Stanford Law School to deliver a presentation on several cutting-edge legal issues relating to blockchain...more

Orrick, Herrington & Sutcliffe LLP

The World in US Courts: Orrick's Quarterly Review of Decisions Applying US Law to Global Business and Cross-Border Activities

Alien Tort Statute (ATS)/Political Question Doctrine/Foreign Sovereign Immunity Act (FSIA)/ Act of State Doctrine - District Court Dismisses ATS Claim Where Alleged Conduct in US was not Directly Linked to Injuries...more

Kramer Levin Naftalis & Frankel LLP

Is Bank Debt a Security?: Dangerous Implications of the General Motors Litigation

GM’s term lenders had received $28 million in cash interest during the 90 days prior to GM’s filing, and $1.5 billion in full payment during the bankruptcy, subject to disgorgement if the term lenders proved to be...more

Proskauer - Corporate Defense and Disputes

In Conflict With Other Circuits, Seventh Circuit Rules That Certain Transfers Involving Financial Institution Intermediaries Not...

Section 546(e) of the bankruptcy code prohibits a bankruptcy trustee from avoiding “settlement payment[s]”, or payments “made in connection with a securities contract,” that are “made by or to (or for the benefit of)”...more

Alston & Bird

Bankruptcy & Financial Restructuring/Finance Advisory: Second Circuit Rejects Potential Loophole in the Securities Contract Safe...

Alston & Bird on

The Second Circuit Court of Appeals recently held that the “safe harbor” protections for securities contracts in Section 546(e) of the Bankruptcy Code prevented individual creditors’ state law constructive fraudulent transfer...more

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