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Delaware Bankruptcy Court Denies Multi-Party Setoff
On Jan. 9, 2009, the United States Bankruptcy Court for the District of Delaware, in the SemCrude, L.P., et al. bankruptcy cases, refused to enforce the terms of a valid, pre-bankruptcy agreement that provided for cross-affiliate, multi-party setoff ' a setoff by a creditor holding funds belonging to one or more debtors ' based on a lack of “mutuality” under ' 553 of the Bankruptcy Code (the “SemCrude decision”). The decision, In re SemCrude, L.P., Case No. 08-11525 (BLS), 2009 WL 68873 (Bankr. D. Del. Jan. 9, 2009), is a departure from the long-standing assumption that a multi-party netting agreement among affiliates would be upheld in bankruptcy if enforceable under applicable non-bankruptcy law. This article provides an analysis of the decision, the procedural status and its potential impact, and recommendations for minimizing the potential negative implications.
The Semcrude Decision
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