On August 2, 2012, the United States Court of Appeals for the Fifth Circuit held that a requirements contract for electricity is a forward contract for purposes of section 546(e) of the Bankruptcy Code and, therefore, settlement payments made under the contract are exempt from avoidance as preferences. Claude Lightfoot v.
On August 2, 2012, the United States Court of Appeals for the Fifth Circuit held that a requirements contract for the supply of electricity constituted a “forward contract” under the Bankruptcy Code and, therefore, was exempt from preference avoidance actions. The Fifth Circuit held that the contract in this case met the plain language definition of a “forward contract,” notwithstanding the fact that it lacked fixed quantity and delivery date terms. Lightfoot v. MXEnergy Elec., Inc. (In re MBS Mgmt. Servs., Inc.), 2012 WL 3125167 (5th Cir. Aug. 2, 2012).
First and foremost here at the Drug and Device Law Blog, we like good, strong defense decisions. If those decisions contain lessons (or reminders) for our everyday practice – so much the better. That’s why we’ve blogged about cases that let us remind you to check publicly available information about plaintiffs, make sure the plaintiff was alive when she filed suit, and search bankruptcy filings to see if plaintiff disclosed her lawsuit. We
On August 2, 2012, the United States Court of Appeals for the Fifth Circuit issued its decision in Lightfoot v. MXEnergy Elec., Inc. (In re MBS Mgmt. Servs., Inc.), Case No. 11-30553 (5th Cir. 2012), holding that a real estate management company’s electricity supply contract qualified as a “forward contract”, payments on account of which are protected from avoidance as preferential transfers under the Bankruptcy Code’s “safe harbor” provisions.
The U.S. Fifth Circuit Court of Appeals recently ruled on whether section 546(e) of the Bankruptcy Code exempts payments for electricity provided under a requirements contract from avoidance as preferences. At least where the facts match those of the subject case, MBS Mgmt. Serv., Inc. v. MXEnergy Elect., Inc., No. 11-30553, 2012 WL 3125167 (5th Cir. Aug. 2, 2012), such payments are exempt.
On August 2, 2012, the United States Court of Appeals for the Fifth Circuit issued a decision in the bankruptcy case for MBS Management Services, Inc. (the “Debtor”). The Fifth Circuit affirmed the district court’s opinion finding that an electric requirements agreement was a “forward contract” and, therefore, that payments made on the agreement were exempt from avoidance under the Bankruptcy Code.
I. Factual Background
The Bankruptcy Code provides a number of “safe harbors” for forward contracts and other derivatives. These provisions exempt derivatives from a number of Bankruptcy Code provisions, including portions of the automatic stay,1 restrictions on terminating executory contracts,2 and the method for calculating rejection damages.3 The safe harbor provisions also protect counterparties to certain types of contracts from the avoidance actions created under Chapter 5 of the Bankruptcy Code, such as the preference and fraudulent transfer statutes.4
On August 2, 2012, in the case ofIn re MBS Management Services, Inc.,1 the Court of Appeals for the Fifth Circuit ruled that a retail electricity agreement with a real estate management company constituted a forward contract protected by the “safe harbor” provisions of the U.S. Bankruptcy Code (“Bankruptcy Code”).
On August 2, 2012, the Court of Appeals for the 5th Circuit issued a decision in Lightfoot v. MXEnergy Electric, Inc. (In re MBS Management Servs., Inc.). No. 11-30553, (5th Cir. Aug. 2, 2012).
In a recent opinion, the Supreme Court unanimously affirmed a secured lender’s right to credit-bid at a bankruptcy sale of assets encumbered by such lender’s liens. In addition to solidifying the rights and protections afforded to a secured creditor in bankruptcy, the Supreme Court lessened some of the uncertainty associated with the acquisition strategy by which a potential buyer purchases claims secured by the targeted assets of a troubled company and seeks to exercise such secured creditor’s rights as to such assets.