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    Lehman Brothers swap clawback effort rejected By Second Circuit
    2020-08-19

    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 agreements that were terminated when Lehman Brothers Holdings Inc. (“LBHI”) and certain of its affiliates filed for bankruptcy in 2008. The panel concluded that the Bankruptcy Code provides a safe harbor for the liquidation of such swap agreements and also the distribution of proceeds from the collateral.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Hogan Lovells, Swap (finance), Title 11 of the US Code, Lehman Brothers, Second Circuit
    Authors:
    Jennifer Lee
    Location:
    USA
    Firm:
    Hogan Lovells
    New U.S. Second Circuit Court of Appeals ruling in Madoff liquidation extends the long arm of fraudulent transfer law
    2019-03-21

    In a unanimous 25 February panel decision, the Second Circuit Court of Appeals held that the trustee liquidating Bernard L. Madoff’s investment firm can claw back billions in Ponzi scheme proceeds from investors who received the proceeds indirectly through non-U.S. “feeder funds” (funds that aggregate investor capital to invest in funds such as Madoff’s).

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Hogan Lovells, Second Circuit
    Authors:
    Ronald Silverman
    Location:
    USA
    Firm:
    Hogan Lovells
    Impact of Second Circuit’s Momentive decision on interest rates under Chapter 11
    2017-12-18

    The Second Circuit recently issued its decision on an appeal to the Momentive Performance Materials Inc. (“MPM”) bankruptcy case. Amongst other issues, the Court found that when determining the appropriate interest rate in a Chapter 11 cramdown, courts should consider market factors rather than strictly apply the Till formula. The Court’s decision will benefit secured creditors when a market rate is ascertainable, as they will no longer have to accept below-market take-back debt.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Hogan Lovells, Bankruptcy, Secured creditor, Second Circuit, US District Court for SDNY
    Authors:
    Ronald Silverman
    Location:
    USA
    Firm:
    Hogan Lovells
    Second Circuit holds that chapter 15 debtors must satisfy eligibility requirements of section 109(a) of the Bankruptcy Code in order to be eligible for relief
    2013-12-17

    In a case of importance to foreign representatives of foreign debtors seeking the assistance of US courts pursuant to chapter 15 of the Bankruptcy Code, the US Court of Appeals for the Second Circuit has held that the debtor eligibility requirements of section 109(a) of the US Bankruptcy Code apply in cases under chapter 15 as they would in cases under other chapters of the Bankruptcy Code. The decision in Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), Case No. 13-612 (2d Cir. Dec.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Debtor, Title 11 of the US Code, Second Circuit, United States bankruptcy court
    Authors:
    Joel Moss , Devi Shah , Ashley Katz , John M. Marsden , Thomas A. Pugh
    Location:
    USA
    Firm:
    Mayer Brown
    In re Fairfield Sentry Ltd.: Second Circuit Court of Appeals provides guidance to “COMI” determinations in Chapter 15 cases
    2013-04-19

    On April 16, 2013, in Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.),1 the US Court of Appeals for the Second Circuit issued an important decision informing fundamental concepts of cross-border insolvency law as implemented pursuant to Chapter 15 of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Title 11 of the US Code, Second Circuit, United States bankruptcy court
    Authors:
    Brian Trust , Frederick D. Hyman , Joel Moss
    Location:
    USA
    Firm:
    Mayer Brown
    New York Court of Appeals to consider vast expansion to Koehler: turnover of assets at a non-US subsidiary
    2012-10-03

    The US Court of Appeals for the Second Circuit recently certified to the New York Court of Appeals two questions concerning the ability of a judgment creditor to garnish accounts of judgment debtors at non-US subsidiaries of banks that have branches in New York or are otherwise subject to jurisdiction in New York.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Mayer Brown, Personal property, Subsidiary, Second Circuit, US District Court for SDNY
    Authors:
    Christopher J. Houpt
    Location:
    USA
    Firm:
    Mayer Brown
    New York district courts differ regarding the scope of the Bankruptcy Code’s “safe harbors” for protected contracts
    2011-10-05

    The District Court for the Southern District of New York recently issued an opinion in Picard v. Katz, et al., (In re Bernard L. Madoff Investment Securities LLC),1 which limits avoidance actions against a debtor-broker’s customers to those arising under federal law based on actual, rather than constructive, fraud. The decision was issued by US District Judge Rakoff in the Trustee’s suit against the owners of the New York Mets (along with certain of their friends, family and associates).

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Mayer Brown, Debtor, Security (finance), Fraud, Federal Reporter, Limited liability company, Liquidation, Good faith, Due diligence, Title 11 of the US Code, Second Circuit, Trustee
    Authors:
    Brian Trust , Frederick D. Hyman
    Location:
    USA
    Firm:
    Mayer Brown
    Commercial paper redemption “safe harbored” from preference liability per Second Circuit Court of Appeals
    2011-07-11

    The US Court of Appeals for the Second Circuit recently held that redemptions of commercial paper made through the Depositary Trust Company (DTC) are entitled to the “safe harbor” protections afforded to settlement payments under Bankruptcy Code Section 546(e), and are, therefore, not preferential transfers, even though such payments were made prior to maturity.1 The Second Circuit is the first Circuit Court of Appeal to address the issue, which arises out of the Enron bankruptcy case.

    Legal Framework

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Security (finance), Safe harbor (law), Market liquidity, Commodity, Debt, Maturity (finance), Line of credit, Commercial paper, Title 11 of the US Code, Enron, Second Circuit, United States bankruptcy court
    Authors:
    Brian Trust
    Location:
    USA
    Firm:
    Mayer Brown
    US Second Circuit: gift plans impermissible under absolute priority rule
    2011-02-11

    On February 7, 2011, in a highly anticipated decision, the Second Circuit Court of Appeals held that in Chapter 11 reorganizations, senior creditors may not “gift” recoveries to junior creditors and/or equity interest holders over the objection of an intervening class. In In re DBSD N.A., Inc., __ F.3d __, 2011 WL 350480 (2d Cir. 2011), the majority ruled that such “gift plans” run afoul of the “absolute priority rule,” which is codified in Section 1129(b) of Bankruptcy Code. The decision has significant implications for future bankruptcy cases in New York.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Share (finance), Bankruptcy, Shareholder, Debtor, Unsecured debt, Dividends, Interest, Federal Reporter, Debt, Standing (law), Unsecured creditor, Westlaw, Second Circuit, United States bankruptcy court, First Circuit
    Authors:
    Howard S. Beltzer , Brian Trust
    Location:
    USA
    Firm:
    Mayer Brown
    Unsecured creditors may claim post-petition attorneys’ fees
    2009-11-24

    In a decision that will be of great interest to the creditor community, the US Court of Appeals for the Second Circuit held, on November 5, 2009, that the Bankruptcy Code does not bar an unsecured claim for post-petition attorneys’ fees that was authorized under a valid prepetition contract. The case, Ogle v. Fidelity & Deposit Company of Maryland,1 extends and clarifies the US Supreme Court’s March 2007 decision in the Travelers case,2 which opened the door for such a ruling.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Unsecured debt, Interest, Liquidation, Unsecured creditor, Title 11 of the US Code, SCOTUS, Second Circuit, Ninth Circuit, United States bankruptcy court
    Authors:
    Brian Trust , Frederick D. Hyman
    Location:
    USA
    Firm:
    Mayer Brown

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