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    Second Circuit Adopts "Control Test" for Imputation of Fraudulent Intent in Bankruptcy Avoidance Litigation
    2021-11-15

    In yet another chapter in the tortured saga of the fallout from the failed 2007 leveraged buyout ("LBO") of media giant The Tribune Co. ("Tribune") in a transaction orchestrated by real-estate mogul Sam Zell, the U.S. Court of Appeals for the Second Circuit largely upheld lower court dismissals of claims asserted by Tribune's chapter 11 liquidation trustee against various shareholders, officers, directors, employees, and financial advisors for, among other things, avoidance and recovery of fraudulent and preferential transfers, breach of fiduciary duties, and professional malpractice.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States, Second Circuit
    Authors:
    Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Second Circuit Applies Federal Bankruptcy Law, Not Securities Law, in Madoff SIPA Liquidation
    2021-09-02

    “[L]ack of good faith in a SIPA [Securities Investor Protection Act] liquidation applies an inquiry notice, not willful blindness, standard, and that a SIPA trustee does not bear the burden of pleading the transferee’s lack of good faith,” held the U.S. Court of Appeals for the Second Circuit on Aug. 30, 2021. In re Bernard L. Madoff Investment Securities LLC, 2021 WL 3854761, 91 (2d Cir. Aug. 30, 2021) (“Madoff”).

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Second Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit Reverses Lower Courts, Preserves Madoff Trustee's Ability To Pursue $3.75 Billion of Stolen Customer Property
    2021-08-30

    On Aug. 30, 2021, in a significant decision that paves the way for additional substantial recoveries for the victims of Bernard L. Madoff’s Ponzi scheme, the Second Circuit Court of Appeals preserved the ability of Irving H. Picard, SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS), to pursue $3.75 billion of stolen customer property currently in the hands of participants in the global financial markets.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, BakerHostetler, Second Circuit
    Authors:
    Seanna R. Brown , Chardaie C. Charlemagne , Matthew D. Feil , Frank M. Oliva , Irving H. Picard , David J. Sheehan , Amy E. Vanderwal
    Location:
    USA
    Firm:
    BakerHostetler
    Second Circuit Holds That Certain Private Student Loans May Be Dischargeable Under Section 523(a)(8)(A)(ii)
    2021-08-25

    The Situation: In Homaidan v. Sallie Mae, Inc., et al., the U.S. Court of Appeals for the Second Circuit recently affirmed that certain types of private student loans are not "obligation[s] to repay funds received as an educational benefit, scholarship, or stipend" that are exempt from discharge in bankruptcy absent an undue hardship.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Public, Jones Day, Coronavirus, Supreme Court of the United States, Second Circuit
    Authors:
    Matthew A. Martel , Dan T. Moss , Mahesh V. Parlikad , Albert J. Rota , Joseph B. Sconyers
    Location:
    USA
    Firm:
    Jones Day
    In Brief: U.S. Supreme Court Declines Review of High-Profile Bankruptcy Rulings
    2021-07-29

    Madoff

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States, Second Circuit
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    2nd Circuit says private student loans not explicitly exempt from bankruptcy discharge
    2021-07-26

    On July 15, the U.S. Court of Appeals for the Second Circuit held that private student loans are not explicitly exempt from the discharge of debt granted to debtors in a Chapter 7 bankruptcy. According to the opinion, the plaintiff filed for Chapter 7, which led to an ambiguous discharge order as to how it applied to his roughly $12,000 direct-to-consumer student loans.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Public, Orrick, Herrington & Sutcliffe LLP, Second Circuit
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Post-script – recent Enron “settlement payment” decision has first beneficiary
    2011-08-03

    The Bottom Line:

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Unsecured debt, Security (finance), Default (finance), Subsidiary, Enron, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Benjamin C. Wolf
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Circuit courts uphold dismissal of securities claims based on alleged fraud in sale of auction rate securities
    2011-08-03

    Two recent opinions from separate federal courts of appeal upheld the dismissal of lawsuits by sophisticated investors that suffered losses in the auction rate securities ("ARS") market against the securities broker-dealers that allegedly fraudulently induced the purchase of the ARS.1

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Duane Morris LLP, Security (finance), Fraud, Market liquidity, Limited liability company, Misrepresentation, Due diligence, Broker-dealer, Underwriting, Securities fraud, US Securities and Exchange Commission, Securities Exchange Act 1934 (USA), Second Circuit, Sixth Circuit, Circuit court
    Authors:
    Wayne A. Mack , Matthew M. Ryan
    Location:
    USA
    Firm:
    Duane Morris LLP
    U.S. Supreme Court Declines Review of Landmark Tribune Safe Harbor Ruling
    2021-05-21

    On April 19, 2021, the U.S. Supreme Court declined to hear the appeal of a landmark 2019 decision issued by the U.S. Court of Appeals for the Second Circuit regarding the applicability of the Bankruptcy Code's safe harbor for certain securities, commodity, or forward contract payments to prevent the avoidance in bankruptcy of $8.3 billion in payments made to the shareholders of Tribune Co. as part of its 2007 leveraged buyout ("LBO").

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Jones Day, Safe harbor (law), Supreme Court of the United States, Second Circuit
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Second Circuit Tribune Decision Stands—Providing Bankruptcy Code “Safe Harbor” Protection for LBOs
    2021-04-20

    In a case with wide-reaching implications for the private equity industry, the U.S. Supreme Court ended a decade-long effort by distressed debt investors to undermine the safe harbor from avoidance actions set forth in Section 546(e) of the Bankruptcy Code. On April 19, 2021, the Supreme Court denied a petition for certiorari in the In re Tribune Company Fraudulent Conveyance Litigation (“Tribune”), preserving the safe harbor defense for LBOs established by the influential Second Circuit.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Ropes & Gray LLP, Private equity, Second Circuit
    Authors:
    Andrew G. Devore , Ryan Preston Dahl , William M. Shields , Neill P. Jakobe , David Blittner , Gregg M. Galardi , Douglas Hallward-Driemeier , Loretta R. Richard
    Location:
    USA
    Firm:
    Ropes & Gray LLP

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