Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

The Bankruptcy StrategistFeaturesBankruptcyLitigation

Split Second Circuit Narrows Bankruptcy Code's Settlement Payment Safe Harbor

By Michael L. Cook
January 01, 2024

Two streams of payments to shareholders in a leveraged buyout (LBO), totaling $4 million (Certificate Transfers) and $1.101 billion (DTC Transfers), made through a paying agent bank, were "safe harbored under [Bankruptcy Code §546(e), but "Payroll Transfers," totaling $78 million, made to the debtor's "directors, officers and employee shareholders through its payroll program … [were] not so shielded," from fraudulent transfer claims, held the Second Circuit in a split decision. In re Nine West LBO Securities Litigation, 2023 WL 8180356, *4 (2d Cir. Nov. 27, 2023) (2-1). The majority opinion turned on "the scope of the term 'financial institution' as defined in [Code] §101(22)(A)" when applied to the paying agent bank and its customer, the debtor here. Id. In the majority's view, "the definition encompasses bank customers [i.e., the debtor] only in transactions with the bank acting as their agent …." Id.

Statutory Background

Code §546(e) bars a bankruptcy trustee's "avoidance of 'settlement payment[s] … made by or to (or for the benefit of) a … financial institution, … or … transfer[s] made by or to (or for the benefit of) a… financial institution … in connection with a securities contract …." Most important here, the "Code defines 'financial institution' to include not only banks, but also a customer of a bank 'when [the bank] is acting as agent or custodian for a customer … in connection with a securities contract." Id., quoting Code §101(22)(A) (emphasis added).

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers Image

There's current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.

Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Transfer Tax Implications on Real Property Leases Image

The real property transfer tax does not apply to all leases, and understanding the tax rules of the applicable jurisdiction can allow parties to plan ahead to avoid unnecessary tax liability.