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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
    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
    Supreme Court Holds That Presence of Financial Conduits Does Not Trigger “Safe Harbor” Protection for Securities-Related Transfers Under Section 546(e) of the Bankruptcy Code
    2018-03-05

    On February 27, 2018, the United States Supreme Court resolved a circuit split regarding the proper application of the safe harbor set forth in section 546(e) of the Bankruptcy Code, a provision that prohibits the avoidance of a transfer if the transfer was made in connection with a securities contract and made by or to (or for the benefit of) certain qualified entities, including a financial institution.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Supreme Court of the United States
    Authors:
    Jacob A Adlerstein , Paul M. Basta , Kelley A. Cornish , Alice Belisle Eaton , Brian S. Hermann , Kyle J. Kimpler , Alan W Kornberg , Elizabeth R. McColm , Andrew N. Rosenberg , Jeffrey D. Saferstein
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Not So Safe: The Supreme Court Clarifies the Scope of the Bankruptcy Code’s Section 546(e) Safe Harbor Provision
    2018-03-06

    Section 546(e) of the Bankruptcy Code shields certain transfers involving settlement payments and other payments in connection with securities contracts (for example, payment for stock) made to certain financial intermediaries, such as banks, from avoidance as a fraudulent conveyance or preferential transfer. In recent years, several circuit courts interpreted 546(e) as applying to a transfer that flows through a financial intermediary, even if the ultimate recipient of the transfer would not qualify for the protection of 546(e).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, A&O Shearman, Supreme Court of the United States
    Authors:
    Fredric Sosnick , Joel Moss , Solomon J. Noh , Ned S. Schodek
    Location:
    USA
    Firm:
    A&O Shearman
    SCOTUS Merit Case: The Clawback Carwash Is Closed…
    2018-03-01

    On February 27, 2018, the United States Supreme Court issued a unanimous opinion in the Merit Management Group, LP v. FTI Consulting, Inc. case, holding that funds that are merely transferred through a financial institution are not afforded the Bankruptcy Code “safe harbor” protections of 11 U.S.C. § 546(e), which precludes the avoidance or “clawback” of certain transfers; rather, whether the safe harbor applies in a given case will depend on the whether the parties to the overarching transfer are listed as protected parties in the statute.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Vinson & Elkins LLP, Safe harbor (law), Supreme Court of the United States
    Location:
    USA
    Firm:
    Vinson & Elkins 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

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