Defusing the UST Tax Bomb

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  Eighth Circuit Rejects Ponzi Scheme Presumption to Protect Legitimate Loan Repayments

  By Michael L. Cook

  In Stoebner v. Opportunity Finance, LLC, the U.S. Court of Appeals for the Eighth Circuit held that “… Ponzi scheme payments to satisfy legitimate antecedent debts to defendant banks could not be avoided” by a bankruptcy trustee “absent transaction-specific proof of actual intent to defraud or the statutory elements of constructive fraud — transfer by an insolvent debtor who did not receive reasonably equivalent value in exchange.”

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  Don’t Set Me Off: No Triangular Setoff Among Affiliated Entities and a Debtor Counterparty

  By Adam C. Rogoff

  In today’s global economy, companies often have multiple business lines operating through separate entities. Outside of bankruptcy, these affiliated operations sometimes transact in a holistic — albeit legally distinct — debtor-creditor relationship with their counterparty. But, as this article discusses, the legal separateness of affiliates can hinder economic protections that a creditor might have otherwise when its counterparty files for bankruptcy.

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  Caveat Intercreditor: Bankruptcy May Be Coming

  By Joel H. Levitin, Richard A. Stieglitz Jr. and Stephen J. Gordon

  Bankruptcy Provisions in First Lien/Second Lien Intercreditor Agreements

  While intercreditor agreements (ICAs) are not necessarily the most attention-grabbing of the various loan documents common to large financing transactions, they are nevertheless important, and lack of attention to detail with respect to their provisions could lead to unintended results in any future bankruptcy case.

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