By Eric Daucher (US) on Posted in USFraudulent transfer statutes were enacted to protect creditors from improper depletion of a debtor’s assets. They generally accomplish this goal by allowing creditors (or a bankruptcy estate representative) to avoid transactions that are either actually or constructively fraudulent as to creditors, and to recover some or all of the proceeds of the transaction. For example,… Continue Reading
By on Posted in USAs we previously discussed, the Supreme Court’s decision in Executive Benefits Insurance Agency v. Arkison, dodged the question of whether litigants can consent to final adjudication of “Stern problem” claims by a bankruptcy court. Two recent decisions in the Fifth and Ninth Circuit have revealed the scope of the uncertainty left in Arkison’s wake and… Continue Reading
By Eric Daucher (US) on Posted in USOn June 9, 2014, the Supreme Court handed down a decision in Executive Benefits Insurance Agency v. Arkison—a case that was expected to answer fundamental questions about the constitutional limits of bankruptcy courts. The case had the potential to either dramatically reshape, or strongly reaffirm existing fraudulent transfer litigation law and practice. Instead, in a… Continue Reading
By Francisco Vazquez (US) on Posted in USUnder section 548(c) of the Bankruptcy Code, a “good faith” transferee may retain any interest received in an otherwise avoidable fraudulent transfer under the Bankruptcy Code “to the extent that such transferee … gave value to the debtor in exchange for such transfer.” To successfully utilize this affirmative defense, a transferee must demonstrate that it… Continue Reading
By Francisco Vazquez (US) on Posted in USOn 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
By Eric Daucher (US) on Posted in Bankruptcy CourtsAfter January 14’s oral argument in Executive Benefits Insurance Agency v. Arkison, the big question appears to be not whether the Supreme Court will scale back bankruptcy court power over fraudulent transfer actions, but how drastic the new limitations will be. Our previous discussions of Arkison appear here and here. Background The facts of Arkison are… Continue Reading
By on Posted in USA 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
By Eric Daucher (US) on Posted in USAs we discussed in a recent post on Executive Benefits Insurance Agency v. Arkison, the United States Supreme Court is preparing to address the constitutional limits on bankruptcy court authority in fraudulent transfer litigation. In granting certiorari in Arkison, the Supreme Court agreed to consider two questions: Can a bankruptcy court issue proposed findings of fact… Continue Reading
By Eric Daucher (US) on Posted in USOn June 24, 2013, the Supreme Court of the United States agreed to hear an appeal that will determine the future of fraudulent transfer litigation before all United States bankruptcy courts. In Executive Benefits Insurance Agency v. Arkison, SCOTUS will determine just how much its prior decision in Stern v. Marshall limits bankruptcy court authority… Continue Reading
