Second Circuit Limits Creditors’ Ability to Claw Back LBO Payments

by Dechert LLP

A recent decision by the U.S. Court of Appeals for the Second Circuit, In re Tribune Company Fraudulent Conveyance Litigation,1 represents a significant victory for shareholders who may get cashed out in connection with a leveraged transaction that precedes a company bankruptcy.

As background, in connection with a leveraged buyout (LBO), the shareholders of a public company are often required to sell their shares in return for a cash payment. In the event that the company ultimately goes bankrupt, the shareholders could be subject to constructive fraudulent conveyance claims by the bankrupt company’s trustee, who will seek to “claw back” the money that the shareholders received. Recognizing that these sorts of claims could lead to significant disruption in the securities markets, Congress passed Section 546(e) of the Bankruptcy Code.2 That section precludes trustees from bringing federal constructive fraudulent conveyance claims based upon shareholders’ receipt of cash in return for their shares.

In the hopes of clawing back money received by shareholders in connection with LBOs and similar transactions, creditors recently began trying to structure their claims to avoid Section 546(e). Specifically, creditors began: (1) structuring bankruptcy plans so that constructive fraudulent conveyance claims benefiting creditors are not pursued by the trustee, but by creditors themselves; and (2) bringing their constructive fraudulent conveyance claims under state, rather than federal, law. In litigation involving the Tribune Company and Lyondell Chemical Company, for example, creditors sought under state law to recover money that the companies’ public shareholders had received in connection with leveraged transactions that preceded the companies’ bankruptcy filings.

In the Tribune case, the Second Circuit put an end to creditors’ attempts to circumvent Section 546(e). Specifically, the Court held that allowing creditors to pursue state law constructive fraudulent conveyance claims would frustrate Congress’ goal when enacting Section 546(e) of protecting the securities markets and that, as a result, the creditors’ claims are preempted by federal law. The Tribune decision is a significant victory for the former Tribune shareholders – including the numerous mutual fund clients that we represent in that matter – and, in general, for shareholders who may get cashed out in connection with a leveraged transaction that precedes a company bankruptcy.

Background of the Tribune Litigation3

The Tribune Company was at one time one of the largest media and entertainment companies in the country. Among other things, it owned newspapers and TV stations that reached about 80% of the U.S. market, as well as the Chicago Cubs baseball team. Tribune was a public company with thousands of shareholders.

In April 2007, Sam Zell, a Chicago-based billionaire, announced plans to buy out Tribune’s shareholders for US$34 per share in connection with an LBO. To finance the LBO, Tribune borrowed US$11 billion, US$8 billion of which went to the shareholders. The LBO closed in December 2007. After the LBO closed, Tribune’s performance deteriorated. It filed for bankruptcy in December 2008.

Litigation is Filed

In November 2010, the debtor’s Official Committee of Unsecured Creditors brought an intentional fraudulent conveyance action against Tribune’s shareholders and other parties alleged to have benefited from the LBO.4 The Official Committee alleged that Tribune entered into the LBO with an “actual intent to hinder, delay, or defraud” Tribune creditors.5

In early 2011, two groups of creditors – certain Tribune retirees and certain Tribune noteholders (collectively, Creditors) – sought, and received, permission from the Bankruptcy Court to prosecute the state law fraudulent conveyance claims that the Official Committee was not pursuing. The Bankruptcy Court also held that the automatic stay imposed by the Bankruptcy Code would be lifted so that the Creditors could file their complaints. For its part, the Official Committee encouraged the Creditors to bring their state law claims.

In June 2011, the Creditors filed lawsuits asserting state law constructive fraudulent conveyance claims throughout the country. Unlike the intentional fraudulent conveyance claims asserted by the Official Committee, the Creditors’ constructive fraudulent conveyance claims were based on the theory that the shareholders obtained the proceeds of the LBO for less than reasonably equivalent value and that Tribune was rendered insolvent by the LBO.6

The Official Committee’s and the Creditors’ lawsuits were consolidated and transferred to the Southern District of New York.7 After consolidation, the Southern District of New York appointed an Executive Committee of Defense Counsel to serve as the liaison between the thousands of defendants and the Court and plaintiffs. Michael Doluisio of Dechert served as an Executive Committee member for mutual fund defendants.

The District Court’s Decision

The Tribune shareholders moved to dismiss the Creditors’ state law claims on two grounds. First, the shareholders argued that the claims were preempted by Section 546(e), which bars a bankruptcy trustee from asserting constructive fraudulent conveyance claims that seek to unwind “settlement payments,” such as shareholder payments in connection with an LBO.8 Second, the shareholders argued that, because the Official Committee (now acting through a Litigation Trust) was pursuing intentional fraudulent conveyance claims, the Creditors lacked standing to bring their largely duplicative claims.9

Judge Richard J. Sullivan granted the motion to dismiss. Significantly, however, Judge Sullivan based his decision on the Creditors’ lack of standing, and not on preemption. With regard to the issue of preemption, Judge Sullivan rejected the shareholders’ argument, explaining that Section 546(e) only precluded claims asserted by a bankruptcy trustee; it did not apply to claims brought under state law by individual creditors.10 Both sides appealed to the Second Circuit.

The Second Circuit Decision

In a unanimous decision relying on both the plain language of the Bankruptcy Code and the turmoil that the Creditors’ claims would create, the Second Circuit held that: (1) the Creditors had standing to bring their claims, but (2) the claims were preempted by Section 546(e). Specifically, the Court held that the Creditors’ claims were preempted under principles of conflict preemption because Congress’ goal of protecting the securities markets from disruption would be thwarted if the Creditors’ claims could proceed.11


In holding that the Creditors had standing to bring their claims, the Second Circuit relied heavily on the particular facts of the Tribune bankruptcy case. For instance, the Court noted that the Bankruptcy Court had expressly allowed the Creditors to bring their claims. The Second Circuit’s reliance on the particular facts of the case suggests that this portion of its decision will not have a wide-ranging impact.


On the other hand, the Second Circuit’s holding with respect to Section 546(e) should have a huge impact going forward, as it should preclude creditors from bringing state law constructive fraudulent conveyance claims against shareholders following an LBO or similar transaction.

First, the Court explained that, unlike in areas traditionally governed solely by state law, there was no need to presume that Congress did not intend for Section 546(e) to preempt constructive fraudulent conveyance claims.12 The Court explained that “the regulation of creditors’ rights has ‘a history of significant federal presence’” and that “once a party enters bankruptcy, the Bankruptcy Code constitutes a wholesale preemption of state laws regarding creditors’ rights.”13 Thus, preemption here did not involve any “measurable concern about federal intrusion into traditional state domains.”14

Next, the Court explained that the Creditors’ core theory (i.e., Section 546(e)’s use of the word “trustee” meant that it did not apply to creditors’ claims) raised “ambiguities, anomalies, or conflicts with the purposes of the Code.”15 For example, the Court explained that the Creditors’ theory, which would allow for individual creditors to file claims throughout the country, directly contravened the intent of Section 544 of the Bankruptcy Code to “simplify proceedings, reduce the costs of marshalling the debtor’s assets, and assure an equitable distribution among the creditors.”16 The Court also explained that the Creditors’ theory would make it nearly impossible for a trustee in bankruptcy to settle claims with shareholders, because the shareholders would not be able to protect themselves via the settlement from claims by individual creditors.

Finally, and most significantly, the Court explained that “every congressional purpose reflected in Section 546(e) ... is in conflict with [the Creditors’] legal theory.”17 The Court explained that Section 546(e) was intended to protect settled securities transactions from disruption and that this protection is “essential to securities markets.”18 The Court specifically recognized the harm that the Creditors’ claims would cause mutual funds and other investors, writing:

A lack of protection against the unwinding of securities transactions would create substantial deterrents, limited only by the copious imaginations of able lawyers, to investing in the securities market.... For example, all investors in public companies would face new and substantial risks, if [the Creditors’] theory is adopted.... The risks are not confined to the consummation of securities transactions. Pension plans, mutual funds, and similar institutional investors would find securities markets far more risky if exposed to substantial liabilities derived from investments in securities sold long ago.

Therefore, because Congress’ purpose in enacting Section 546(e) would be thwarted if the Creditors’ claims proceeded, the claims were preempted.


The Second Circuit’s Tribune decision is a significant victory for the former Tribune shareholders. The decision should put an end to the efforts of creditors’ representatives to claw back payments to former shareholders in LBOs and similar transactions through state law constructive fraudulent conveyance claims. The Court’s observations about the havoc that these sorts of claims would wreak on the United States’ financial markets is persuasive and likely to be followed by other courts faced with similar claims.


1) No. 13-3992 (Mar. 29, 2016).

2) 11 U.S.C. § 546(e).

3) These facts are largely based on plaintiffs’ allegations, as summarized in the Second Circuit decision: In re Tribune Co. Fraudulent Conveyance Litig., No. 13-3992, slip op. at 7 (2d Cir. Mar. 29, 2016) (Slip op.).

4) Id. at 8–9. That action has since been recaptioned as Kirschner v. FitzSimons, et al., No. 12-cv-02652, and is currently pending in the U.S. District Court for the Southern District of New York.

5) 11 U.S.C. § 548 (2016).

6) See, e.g., Picard v. Fairfield Greenwich Ltd., 762 F.3d 199, 208-09 (2d Cir. 2014); In re Sharp Intern. Corp., 403 F.3d 43, 53 (2d Cir. 2005). Unlike in an intentional fraudulent transfer claim, “the issue of intent is irrelevant” in a constructive fraudulent transfer claim. In re Sharp Intern. Corp., 403 F.3d at 54.

7) In re: Tribune Co. Fraudulent Conveyance Litig., 831 F. Supp. 2d 1371 (J.P.M.L. 2011).

8) In re Tribune Co. Fraudulent Conveyance Litig., 499 B.R. 310, 325 (S.D.N.Y. 2013).

9) In re Tribune Co. Fraudulent Conveyance Litig., 499 B.R. at 325.

10) Id.

11) Slip Op. at 3.

12) Id. at 19.

13) Id.

14) Id. at 22.

15) Id. at 38.

16) Id. at 29.

17) Id. at 39.

18) Id.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dechert LLP | Attorney Advertising

Written by:

Dechert LLP

Dechert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.