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Bankruptcy Court for the Southern District of New York creates conflict with Third Circuit by holding safe harbor inapplicable to private securities transactions, even absent illegal conduct
2011-04-27

In what appears to be a matter of first impression, Bankruptcy Judge Robert D. Drain, United States Bankruptcy Court for the Southern District of New York, has held that a statutory safe harbor against constructive fraudulent conveyance actions under the Bankruptcy Code involving securities transfers does not apply to the private sale of securities, even when there are no allegations of illegal conduct or fraud involved in the underlying transaction.

Filed under:
USA, New York, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Debtor, Security (finance), Fraud, Safe harbor (law), Commodity broker, Secured loan, Pro rata, Title 11 of the US Code, Small Business Administration (USA), United States bankruptcy court, Third Circuit, US District Court for SDNY, Trustee
Authors:
Nicholas J. Brannick , Stephen D. Lerner , Jeffrey A. Marks
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Bankruptcy Court adopts Madoff trustee’s method of determining “net equity”
2010-04-28

The United States Bankruptcy Court for the Southern District of New York issued an important ruling on March 1, 2010 in the Securities Investor Protection Act (SIPA) liquidation of Bernard L. Madoff Investment Securities LLC (Madoff Securities), adopting the trustee’s method of determining “net equity” for purposes of distributing “customer property” and Securities Investor Protection Corporation (SIPC) funds under SIPA.3

Securities Investor Protection Act

Filed under:
USA, New York, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Squire Patton Boggs, Bankruptcy, Debtor, Security (finance), Liquidation, Broker-dealer, Investment funds, Pro rata, Securities Investor Protection Corporation, United States bankruptcy court, Trustee
Authors:
Peter R. Morrison
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Bank's lack of diligence results in denial of late claim
2011-05-25

COMMODITY FUTURES TRADING COMMISSION v. LAKE SHORE ASSET MANAGEMENT LTD. (May 11, 2011)

Filed under:
USA, Banking, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Share (finance), Shareholder, Fraud, Asset management, Default judgment, Commodity market, Pro rata, Commodity Futures Trading Commission (USA)
Location:
USA
Firm:
Kelley Drye & Warren LLP
View Original Article
Pro-rata calculation of pre-petition portion of tax refund was reasonable
2010-08-11

IN RE: MEYERS (August 2, 2010)

Filed under:
USA, Insolvency & Restructuring, Litigation, Tax, Kelley Drye & Warren LLP, Bankruptcy, Debtor, Debt, Liability (financial accounting), Legal burden of proof, Prima facie, Pro rata, United States bankruptcy court, Trustee
Location:
USA
Firm:
Kelley Drye & Warren LLP
View Original Article
Short cuts make for even longer delays
2016-08-04

Any legislation or action which seeks to alter the pari passu distribution of an insolvent company's property amongst its creditors needs to be very carefully and comprehensively considered, and have regard to accrued rights and interests.

Filed under:
Australia, Western Australia, Insolvency & Restructuring, Litigation, Tax, Clayton Utz, Income tax, Liquidation, Liquidator (law), Pro rata, Corporations Act 2001 (Australia), High Court of Justice, High Court of Australia, Singapore High Court
Location:
Australia
Firm:
Clayton Utz
View Original Article
Account transfer in the event of an FCM liquidation
2011-11-04

This Client Alert addresses the impact on a customer of a futures commission merchant (FCM) with respect to his or her accounts held by that FCM prior to a filing for bankruptcy under Title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the Bankruptcy Code) by the FCM.

Summary

Filed under:
USA, Derivatives, Insolvency & Restructuring, Latham & Watkins LLP, Bankruptcy, Debtor, Commodity, Futures contract, Commodity broker, Liquidation, Pro rata, US Code, Title 11 of the US Code, Commodity Futures Trading Commission (USA), Trustee
Authors:
Mark A. Broude
Location:
USA
Firm:
Latham & Watkins LLP
View Original Article
Survival of loss carry-forwards: European Commission raises doubts regarding common market conformity of the German restructuring clause (Sec. 8c para. 1a CTA)
2010-07-06

Does the German restructuring clause of Sec. 8c para. 1a CTA (see our Client Alert of 10 July 2009) conform to European Community law? This will be analyzed by the European Commission which has — by circular of 24 February — announced the initiation of a formal examination procedure (Art. 108 para. 2 TFEU, former Art. 88 para. 2 of the EC Treaty). Already before completion of the formal procedure, corporations with unrestricted and restricted tax liability in Germany may face farreaching consequences.

A. The Restructuring Clause of Sec. 8c para. 1a CTA

Filed under:
European Union, Germany, Insolvency & Restructuring, Tax, Latham & Watkins LLP, Share (finance), Shareholder, Market liquidity, Single market, Taxable income, Ex post facto law, Subsidy, State aid, Electricity generation, Pro rata, Treaty on the Functioning of the European Union, Treaty of Rome, European Commission, Court of Justice of the European Union
Location:
European Union, Germany
Firm:
Latham & Watkins LLP
View Original Article
How to cut risk of dealing with a defaulting lender
2008-10-08

In the wake of recent bankruptcy filings by several prominent financial institutions, there’s a growing interest in changing standard credit documentation to address the risks of defaulting lenders and nonperforming administrative agents. Here are credit agreement provisions that financial institutions, acting as swingline lenders and letter of credit issuers, can require to protect themselves against the risk of a defaulting lender.

Filed under:
USA, Banking, Insolvency & Restructuring, White & Case LLP, Share (finance), Bankruptcy, Letter of credit, Credit (finance), Debtor, Collateral (finance), Interest, Margin (finance), Good faith, Refinancing, Default (finance), Line of credit, Pro rata
Location:
USA
Firm:
White & Case LLP
View Original Article
Bankruptcy Appellate Panel says Section 510(b) may effectively extinguish fraud, breach of contract claims arising from purchase of LLC interests
2008-03-06

Sometimes the interpretation of the Bankruptcy Code leads to unexpected results. In a recent case, the US Bankruptcy Appellate Panel of the Ninth Circuit (BAP) has ruled that section 510(b) of the Bankruptcy Code requires the subordination of certain claims against a debtor to all equity interests in the debtor, even though such subordination may mean that the holders of the claims will receive nothing on the claims.

Filed under:
USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Debtor, Breach of contract, Fraud, Interest, Limited liability company, Mortgage loan, Deed, Pro rata, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
Location:
USA
Firm:
White & Case LLP
View Original Article
New bankruptcy cram down and foreclosure prevention legislation introduced
2009-02-26

This week, Representative John Conyers introduced the “Helping Families Save Their Homes Act of 2009” (H.R. 1106) (the “Act”), which has been circulated in advance of a vote by the House of Representatives anticipated as early as today. Additional amendments have been offered to the bill, but it is unclear which, if any, will be incorporated into the final text. It is not expected that the Senate will consider its version of the bill until mid-March.

Filed under:
USA, Insolvency & Restructuring, Securitization & Structured Finance, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Mortgage loan, Foreclosure, Mortgage-backed security, Pro rata, US House of Representatives, United States bankruptcy court
Location:
USA
Firm:
Cadwalader Wickersham & Taft LLP
View Original Article

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