The SEC’s recent enforcement settlement involving a fund manager highlights the SEC’s focus on an investor’s “control purpose” triggering the requirement to file on a Schedule 13D as opposed to a short-form 13G. At issue was...more
In the early morning hours of Monday, May 1, 2023, the California Department of Financial Protection and Innovation closed First Republic Bank (“FRB”) and appointed the Federal Deposit Insurance Corporation (“FDIC”) receiver...more
On March 13, 2023, the FDIC announced that substantially all of the assets of Silicon Valley Bank have been transferred to a “bridge bank,” which is a newly chartered bank operated by a board appointed by the FDIC. This...more
It has been a while since I have written anything. Oh, the indignity of having to make a living! Most of you know by now that I am a quirky guy with quirky interests and quirky points of view. In that realm, I must say that I...more
"Safe harbors" in the Bankruptcy Code designed to insulate non-debtor parties to financial contracts from the consequences that normally ensue when a counterparty files for bankruptcy have been the focus of a considerable...more
The Second Circuit ruled last week in Lehman Bros. Special Fin. Inc. v. Bank of Am. Nat'l Ass'n, No. 18-1079 (2d Cir. 2020) that a Lehman Brothers affiliate cannot claw back $1 billion in payments made pursuant to swap...more
In Good Hill Master Fund L.P. v. Deutsche Bank AG, No. 600858/10-2188B, 2017 BL 19363 (App. Div. 1st Dep’t Jan. 24, 2017), the First Department unanimously affirmed a judgment entered in the Commercial Division of over $90...more
In a decision that parts ways with two prior decisions in the Lehman bankruptcy, Lehman Brothers Special Financing Inc. v. Bank of America National Association, No. 10-3547, Bankruptcy Court Judge Shelley Chapman (who is ...more
The recent, dramatic decline in the price of oil illustrates the risk that every oil and gas producer has to declining energy commodity prices. This paper discusses various methods for “hedging” or reducing price risk. In...more
“In 2008, the United States produced on average approximately 5 million barrels of oil a day. By the end of 2014, that number had increased to more than 9 million barrels and the Energy Information Agency predicts production...more
The SEC got a much needed courtroom win with a jury verdict in the Wyly case. The insider trading claim, however, was not submitted to the jury because any penalty was time barred. That claim, which was little more than the...more
Bankruptcy cases are the proving ground for interpreting the boundaries for ISDA safe harbor provisions under the United States Bankruptcy Code. Michigan State Housing Development Authority v. Lehman Brothers Derivative...more
On December 19, 2013, Judge James M. Peck of the United States Bankruptcy Court for the Southern District of New York issued his latest decision in the Lehman Brothers cases addressing the scope of the safe harbor provisions...more
On June 11, 2013, Southern District of New York Judge Jed Rakoff dismissed the complaint of the Trustee for the SemGroup estate seeking to avoid a novation made to Barclays pre-bankruptcy under a swap agreement. The Court...more
Many corporate credit agreements are supported by subsidiary guarantees. Those guarantees often include not only the guaranty of the obligations under the credit agreement but also any related swap agreements. The CFTC has...more
This is a reminder that tomorrow, April 10, 2013, is the deadline for parties to certain swap agreements to obtain a CICI identifying number. The April 10 deadline applies to any party who entered into a swap after April 25,...more
Today the U.S. Supreme Court rendered a pivotal decision, holding that as a prerequisite for certification of a class action, a plaintiff must introduce admissible evidence to show that the case is susceptible to awarding...more
On March 27, 2013, the U.S. Supreme Court, by a vote of 5-4, reversed a sprawling class action encompassing more than 2 million current and former Comcast subscribers who alleged violations of federal antitrust laws. See...more
In secured lending transactions, lenders frequently allow, and even require, borrowers to enter into swap agreements and other financial derivatives to hedge against different business risks, including fluctuations in...more
In Advisory Opinion 2013-01A (February 7, 2013), the Department of Labor (DOL) issued an important advisory opinion addressing the treatment under the Employee Retirement Income Security Act of 1974, as amended (ERISA), of...more
As a general matter, commodity swaps and options on commodities, whether or not physically settled, are subject to regulation under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"). This is because...more