Zone of Insolvency

Zone of Insolvency

Tag Archives: Safe Harbors

Australian law reform: the new ‘safe harbour’ for directors and stay on enforcement of ‘ipso facto’ clauses

Posted in Australia
Australian insolvency laws recently underwent the most comprehensive review and reform since the early 1990s.  Part of those reforms included the introduction of: * a ‘safe harbour’ for directors in respect of the insolvent trading offence; and * a stay on the exercise of certain rights (including termination rights) for counterparties (or ‘ipso facto’ clauses).… Continue Reading

SCOTUS Determines That 546(e) Safe Harbor Does Not Protect Transfers Where Financial Institution Is A Mere Conduit

Posted in U.S.
In a decision significantly impacting the ability of a plaintiff to prosecute avoidance actions, the United States Supreme Court, in Merit Management Group, LP v. FTI Consulting, Inc., 583 U.S. ___ (2018), unanimously held that a transfer of funds, where a financial institution served as a mere conduit, does not entitle the recipient of the… Continue Reading

Second Circuit Applies Safe Harbor to Protect Withdrawals Made by Madoff Customers

Posted in U.S.
Focusing on the plain language provided in Bankruptcy Code section 546(e), the Court of Appeals for the Second Circuit this week held that customers of the now defunct Bernard Madoff Investment Securities LLC can retain funds they had withdrawn from their customer accounts before the Madoff firm was placed into liquidation.  Irving Picard, the trustee… Continue Reading

Creditors’ Trusts Continue to Sidestep the Section 546(e) Safe Harbor

Posted in U.S.
On the heels of the New York District Court’s decision in the Tribune Company fraudulent conveyance litigation, the New York Bankruptcy Court has similarly held that section 546(e) of the Bankruptcy Code, which protects settlement payments from fraudulent transfer claims brought by a bankruptcy trustee under the Bankruptcy Code, does not preclude individual creditors, or… Continue Reading

Surprise! A Good Decision for Derivatives Counterparties in the Lehman Cases

Posted in U.S.
Those active in the derivatives market may be familiar with the Bankruptcy Code’s “safe harbor” provisions. These provisions are intended to protect derivatives participants from some of the debtor-friendly effects of bankruptcy, all in the name of ensuring market stability if a large derivatives market firm were to fail. The safe harbor provisions have been… Continue Reading

Sidestepping the Section 546(e) Safe Harbor

Posted in U.S.
A recent decision issued by the U.S. District Court for the Southern District of New York multi-district litigation In re Tribune Company may have altered the landscape for litigating avoidance actions and narrowed the Bankruptcy Code’s “safe harbor” protections against the avoidance of settlement or swap payments. Section 546(e) of the Bankruptcy Code prevents a… Continue Reading