On March 24, 2016, the United States Court of Appeals for the Second Circuit issued an opinion, concluding that the “safe harbor” provision of the Bankruptcy Code for settlement payments and payments in connection with a securities contract bars fraudulent conveyance claims brought not only by a bankruptcy “trustee” (as stated in Section 546(e) of the Code), but also by creditors seeking to assert state law claims that Section 544 of the Code empowers a bankruptcy trustee to bring. In re Tribune Co. Fraudulent Conveyance Litig., No. 13-3992, slip op. (2d Cir. Mar. 24, 2016) (the “Tribune Opinion”). In a separate summary order, the Court also reached a similar non-precedential ruling with respect to the Section 546(g) safe harbor applicable to swap transactions. Whyte v. Barclays Bank PLC, No. 13-2653, summ. ord. (2d Cir. Mar. 24, 2016) (the “Whyte Summary Order,” and together with the Tribune Opinion, the “Second Circuit Decisions”). Read more. (Subscription required.)
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