Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, 12-mc-115 (S.D.N.Y. July 6, 2014) [click for opinion]

In re Madoff Securities Extends Morrison Framework to Prevent Avoidance of Purely Foreign Transfers under SIPA and the Bankruptcy Code

U.S. District Judge Jed S. Rakoff of the Southern District of New York held on July 6, 2014 that the Madoff Securities SIPA trustee could not recover customer funds subsequently transferred abroad by “foreign feeder funds” to their foreign “customers, managers, and the like.” Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC (In re Madoff Securities), 2014 WL 2998557, *1 (S.D.N.Y. July 6, 2014).

Best practices are higher standards than those set by state law fiduciary duties, federal sentencing guidelines and a maze of other laws including:

As noted in a previous Sutherland Legal Alert, the American Bankruptcy Institute has formed a Commission to Study the Reform of Chapter 11 (the Commission). To further its goal of proposing changes to modernize the Bankruptcy Code, the Commission formed a number of advisory committees, including one named the Financial Contracts, Derivatives and Safe Harbors Committee (the Committee).

The House Judiciary Subcommittee on Regulatory Reform, Commercial, and Antitrust Law recently held hearings regarding certain provisions of the Bankruptcy Code, including the safe harbor from preference and fraudulent conveyance claims for “settlement payments.”

INTRODUCTION

The finality of securities transactions is critical not only to investors but also to global securities markets whose stability depends upon a very basic, but crucial, assumption: once a securities transaction is  complete, it cannot be undone. However, in the wake of the Ponzi scheme perpetrated by Bernard Madoff, this fundamental assumption has been challenged and courts have had to determine whether and under what circumstances a transfer in connection with a securities transaction can be recovered by a bankruptcy trustee.

The United States Court of Appeals for the Seventh Circuit (the “Seventh Circuit”) recently adopted a broad reading of the safe harbor of United States Bankruptcy Code (the “Bankruptcy Code”) § 546(e), which protects from avoidance “settlement payments” and transfers made in connection with a “securities contract,” among other transfers.1 In FCStone, the Seventh Circuit reversed the United States District Court for t

Goldman Sachs RMBS Lawsuit Moves Forward.

On March 28, Bloomberg reported that a U.S. District Judge in Manhattan declined to dismiss a securities lawsuit over residential mortgage-backed securities Goldman Sachs sold in 2007, noting that an appellate decision overturning her findings in a related case had altered the legal landscape. RMBS Suit.