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    Supreme Court Narrows Applicability of Bankruptcy Code's Safe Harbor for Securities-Related Transfers
    2018-03-12

    Client Alert

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Troutman Pepper, Safe harbor (law), Supreme Court of the United States
    Authors:
    Henry J. Jaffe , Marcy J. McLaughlin
    Location:
    USA
    Firm:
    Troutman Pepper
    Who Is A Non-Statutory Insider? The U.S. Supreme Court Provides (Some) Guidance on the Appropriate Standard of Review for this Question in Lakeridge
    2018-03-06

    On March 5, 2018 the United State Supreme Court issued its unanimous decision in U.S. Bank NA v. The Village at Lakeridge, LLC, 583 U.S. ___ (2018), answering the narrow question of what is the proper standard of review for appellate courts in reviewing a bankruptcy court’s determination of non-statutory insider status.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Supreme Court of the United States
    Authors:
    John T. Baxter
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Supreme Court Lakeridge Decision Clarifies the Standard of Review of Mixed Questions of Law and Fact — In this Case, Addressing Insider Status for Plan Confirmation and Cram-Down
    2018-03-06

    In another decision affecting Chapter 11 cases, U.S. Bank National Association v. Village at Lakeridge, --- S. Ct. ---, 2018 WL 1143822 (2018), on March 5, 2018, the United States Supreme Court issued a unanimous decision, authored by Justice Kagan, affirming the Ninth Circuit’s decision to review the Bankruptcy Court’s determination of a mixed question of fact and law for clear error, rather than de novo.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Supreme Court of the United States
    Authors:
    Adam C. Rogoff , Megan M. Wasson
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Supreme Court Clarifies Securities Safe Harbor Under Bankruptcy Code
    2018-03-07

    HIGHLIGHTS:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Holland & Knight LLP, Supreme Court of the United States
    Authors:
    Richard E. Lear , John J. Monaghan
    Location:
    USA
    Firm:
    Holland & Knight LLP
    US Supreme Court Limits Securities Safe Harbor Protection From Bankruptcy Clawback Suits
    2018-03-01

    The securities safe harbor protection of Bankruptcy Code (“Code”) § 546(e) does not protect allegedly fraudulent “transfers in which financial institutions served as mere conduits,” held the U.S. Supreme Court on Feb. 27, 2018. Merit Management Group LP v. FTI Consulting Inc., 2018 WL 1054879, *7 (2018). Affirming the Seventh Circuit’s reinstatement of the bankruptcy trustee’s complaint alleging the insolvent debtor’s overpayment for a stock interest, the Court found the payment not covered by §546(e) and thus recoverable. The district court had dismissed the trustee’s claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Supreme Court of the United States
    Authors:
    Michael L. Cook , David M. Hillman , William (Bill) H. Gussman, Jr.
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    No Safe Harbor for “Overarching Transfer”: Trustee Can Avoid Payments Passing Through Financial Institutions
    2018-03-01

    On February 27, 2018, the Supreme Court issued a significant decision that will increase the exposure of debt and equity investors that receive payments from all kinds of highly leveraged transactions, including leveraged buy-outs and dividend recapitalizations. The unanimous opinion in Merit Management Group, LP v.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, K&L Gates LLP, Safe harbor (law), Supreme Court of the United States
    Authors:
    Charles A. Dale III , Rick Giovannelli , James A. Wright III , David A. Mawhinney
    Location:
    USA
    Firm:
    K&L Gates LLP
    SCOTUS Rules that Bankruptcy Code Safe Harbor Does Not Protect Transfers in Which Financial Institutions Are “Mere Conduits”
    2018-03-01

    On February 27, 2018, the United States Supreme Court in a significant ruling held in Merit Management Group, LP v. FTI Consulting, Inc. that transfers of property of a debtor in which financial institutions are mere conduits or intermediaries may be avoidable. The Court ruled that the safe harbor provisions of section 546(e) of the Bankruptcy Code do not protect such transfers from avoidance.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Supreme Court of the United States, Eleventh Circuit, Seventh Circuit, Tenth Circuit
    Authors:
    Paul N. Silverstein , David A. Zdunkewicz
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    Resolving Circuit Split, US Supreme Court Holds Section 546(e) Safe Harbor Applies Only to Protected Parties
    2018-03-02

    The Bankruptcy Code allows trustees, as well as debtors-in-possession and in some circumstances creditors’ committees, to set aside and recover certain transfers for the benefit of the bankruptcy estate. The purpose of the avoidance powers is to maximize funds available for creditors and to ensure equality of distribution among creditors’ claims. The avoidance powers are not without bounds, however, as the Code sets forth a number of exceptions — most notably, the so-called “securities contract safe harbor” under Section 546(e) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Supreme Court of the United States
    Location:
    USA
    Firm:
    Dechert LLP
    Is Jevic Hauling a Surprise for 363 Sales that Include Priority-Skipping Distributions?
    2018-03-02

    Prior to the United States Supreme Court’s decision in Czyewski v. Jevic Holding Corp., 137 S.Ct. 973, 197 L.Ed.2d 398 (2017), one way to reshuffle the deck chairs on the titanic in a case with too little money, no more assets and too many creditors was for the parties to divvy up the remains through a structured dismissal under Section 349 of the Bankruptcy Code.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Cole Schotz PC, Supreme Court of the United States
    Authors:
    Nicholas J. Brannick
    Location:
    USA
    Firm:
    Cole Schotz PC
    “Clearing & Settlement” Exception to Trustee’s Avoiding Powers Saves Only Payments “To” (not “Through”) Market Intermediaries
    2018-03-05

    Last week, the unanimous Supreme Court clarified that the “clearing and settlement” exception to a bankruptcy trustee’s avoiding powers covers only payments “to,” not merely through, financial market participants.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Burr & Forman LLP, Credit Suisse, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), Supreme Court of the United States
    Authors:
    Thomas K. Potter, III
    Location:
    USA
    Firm:
    Burr & Forman LLP

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