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. §§ 544, 547, 548. Section 546(e), however, bars avoiding certain transfers, including a “settlement payment . . . made by or to (or for the benefit of) . . . a financial institution [or] a transfer made by or to (or for the benefit of) a . . . financial institution . . . in connection with a securities contract.” 11 U.S.C. § 546(e).
Election of Joe Graham to Partner
Joe Graham was elected partner in the New York office. This year, Joe played a leading role in the chapter 11 cases of Avaya, Benefytt and Diamond Sports. He regularly advises on out-of-court restructurings, bankruptcy litigation and distressed investments. Joe earned his J.D., magna cum laude, and his B.A. from the University of Notre Dame.
Kelley Cornish Inducted into “M&A Advisor Hall of Fame”
In our prior alert over the summer, we highlighted the Delaware Supreme Court’s decision in Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 329 (Del.
2023 Restructuring & Insolvency Year in Review Year starts with fears of banking collapse contagion State-backed rescue deal for Credit Suisse announced 10 March 19 March Silicon Valley Bank, centred in California and focussed on funding venture capital and startups, was shut down by its local regulator on 10 March 2023 with the Federal Deposit Insurance Corporation appointed as receiver and the UK bank was sold to HSBC over the course of a weekend. Crypto-exposed Silvergate Bank and Signature Bank both followed suit – all within the span of five days.
I’m reading a U.S. circuit court’s recent bankruptcy opinion that cites Stern v. Marshall, 564 U.S. 462 (2011). I’m startled by that and blurt out (to myself), “Who cites Stern anymore?!” and “Is Stern still a thing?!” and “I thought Stern has been narrowed to nearly nothing?!”
City Hall
City Council Passes Dozens of Bills, Resolutions During Last Meeting of 2023 Session
When a majority of a company’s board approves a tender offer in good faith, can it still be avoided as an actually fraudulent transfer? Yes, says the Delaware Bankruptcy Court, holding that the fraudulent intent of a corporation’s CEO who was a board member and exercised control over the board can be imputed to the corporation, even if he was the sole actor with fraudulent intent.
Background
Companies in Chapter 11 must publicly report substantial financial information — indeed, more information should be reported or available publicly in Chapter 11 than outside of Chapter 11. This paper analyzes what information must be publicly reported or disclosed under the securities laws, the Bankruptcy Code and Bankruptcy Rules; what debtors do to minimize public reporting; and what creditors can do to get the public reporting they deserve.
Debtors May Stop Public Reports Under the Securities Laws.
Key Points