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    Would you (Still) Qualify for this Narrowed Safe Harbor from Clawback Claims?
    2018-04-17

    In a February 2018 ruling, the United States Supreme Court narrowed one of the safe harbors for fraudulent transfer and other avoidance actions. Merit Management Group, LP v. FTI Consulting Group, Inc., 138 S. Ct.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Fredrikson & Byron PA, Supreme Court of the United States
    Location:
    USA
    Firm:
    Fredrikson & Byron PA
    In Brief: U.S. Supreme Court Adopts Deferential Standard of Review on Chapter 11 Insider Status
    2018-04-17

    In U.S. Capital Bank N.A. v. Village at Lakeridge, LLC, 2018 WL 1143822, No. 15-1509 (U.S. Mar. 5, 2018), the U.S. Supreme Court held that an appellate court should apply a deferential standard of review to a bankruptcy court’s decision as to whether a creditor is a "nonstatutory" insider of the debtor for the purpose of determining whether the creditor’s vote in favor of a nonconsensual chapter 11 plan can be counted.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States, United States bankruptcy court
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Supreme Court’s Merit Management Ruling Highlights Potential Alternative Path to Safe Harbor
    2018-04-12

    Possible application of Section 101(22)(A) to safe harbor’s covered entity requirement raises important questions for future transferee defendants.

    Key Points:

    • Merit Management raises the possibility that customers of “financial institutions” may qualify for protection under Section 546(e) safe harbor even if they would not otherwise meet Section 546(e)’s covered entity requirement.

    • Treating customers of “financial institutions” as covered entities could broaden the scope of safe harbor.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Latham & Watkins LLP, Safe harbor (law), Supreme Court of the United States
    Authors:
    Christopher Harris , Kevin L. Mallen
    Location:
    USA
    Firm:
    Latham & Watkins LLP
    Supreme Court Narrows Scope of Safe Harbor Exception for Securities Clawbacks
    2018-04-05

    On February 27, 2018, the U.S. Supreme Court resolved a circuit split under the Bankruptcy Code and determined that where funds passed through financial institutions acting as payment conduits, where the ultimate transfer sought to be avoided was not the type of transaction protected by the safe harbor provisions of the Bankruptcy Code, the safe harbor provisions of Bankruptcy Code Section 546(e), shielding transfers through financial institutions from avoidance actions by bankruptcy trustees, was inapplicable.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Hogan Lovells, Supreme Court of the United States
    Authors:
    Raphaella Ricciardi , Robin E. Keller
    Location:
    USA
    Firm:
    Hogan Lovells
    Merit Management Narrows Bankruptcy Code Section 546(e) Safe Harbor, But Leaves Undisturbed Critical Safe Harbor Technique Deployed by Many Structured Finance Transactions
    2018-03-27

    The U.S. Supreme Court recently scrutinized the proper application of the safe harbor found in Section 546(e) of the U.S. Bankruptcy Code1 in Merit Management Group, LP v. FTI Consulting Inc.2 While the Supreme Court's decision narrowed the reach of the safe harbor, it did little to change the landscape for the multi-billion dollar U.S. structured finance industry, including warehouse lending.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Safe harbor (law), Supreme Court of the United States, United States bankruptcy court
    Authors:
    J. R. Smith , Shannon E. Daily
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    Narrower Harbors: Supreme Court Holds that § 546(e) Securities Safe Harbor Does Not Protect Transfers in Which Financial Institution Is Only a Conduit
    2018-03-15

    The Bankruptcy Code provides bankruptcy trustees, debtors, and creditor committees with “avoidance powers” that allow them to set aside and recover certain transfers that a debtor made before filing for bankruptcy.[1]  These avoidance powers are, however, limited by a number of exceptions enumerated in the Bankruptcy Code, including the securities safe harbor at § 546(e).  Section 546(e) protects from avoidance any transfer “made by or to (or for the benefit of) . . .

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Caplin & Drysdale, Chartered, Bankruptcy, Debtor, Security (finance), Safe harbor (law), Trustee, Supreme Court of the United States, Seventh Circuit, Circuit court
    Authors:
    Kevin C. Maclay , Todd E. Phillips , Kevin M Davis
    Location:
    USA
    Firm:
    Caplin & Drysdale, Chartered
    Clear Error They Say! Supreme Court Opines On Standard Of Review For Determining Non-Statutory Insider Status
    2018-03-18

    Last April, we updated you that the Supreme Court had granted review of In re The Village at Lakeridge, LLC, 814 F.3d 993 (9th Cir. 2016). Our most recent post is here.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Bankruptcy, Supreme Court of the United States, Ninth Circuit, United States bankruptcy court
    Authors:
    Jay Krystinik
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Supreme Court Adopts Deferential Standard of Review on Chapter 11 Insider Status
    2018-03-12

    In U.S. Capital Bank N.A. v. Village at Lakeridge, LLC, No. 15-1509 (U.S. Mar. 5, 2018), the U.S. Supreme Court held that an appellate court should apply a deferential standard of review to a bankruptcy court's decision as to whether a creditor is a "nonstatutory" insider. Nonstatutory insiders are creditors who are not specifically designated as insiders under the Bankruptcy Code (such as officers, directors, and controlling shareholders), but who the bankruptcy court determines nonetheless have sufficient influence over a debtor to be deemed insiders.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States
    Authors:
    Bruce Bennett , Brad B. Erens , Charles M. Oellermann
    Location:
    USA
    Firm:
    Jones Day
    Supreme Court Resolves Circuit Split Regarding Breadth of “Securities Safe Harbor” Applied to Multi-step Transfers Involving Financial Institutions as Mere Conduit Intermediaries
    2018-03-12

    Safe Harbor Protection Generally

    In general, a trustee or debtor-in-possession in a bankruptcy has the power to avoid certain prepetition transfers made by a Debtor. The most common of these are fraudulent transfers and preference payments. But this avoiding power is not unlimited. It is subject to a number of codified exceptions and defenses. And one such exception that has been used to shield an increasing number of transactions is the securities “safe harbor” provision found in section 546(e) of the Bankruptcy Code.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Briggs and Morgan, Supreme Court of the United States
    Authors:
    Bryce Jasper , Benjamin E. Gurstelle , John R. McDonald
    Location:
    USA
    Firm:
    Briggs and Morgan
    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

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