Not So Safe: Navigating The Supreme Court’s Restriction of Bankruptcy Safe Harbor Protection
The Bankruptcy Code’s safe harbor protection offers a defense for a debtor’s fraudulent transfers as well as for preference claims that may result from securities transactions. A majority of appellate courts upheld the sufficiency of this defense even when the sole involvement of a “financial institution,” or a qualified transferee, in the transaction, was as a conduit.
On February 27, 2018, however, the U.S. Supreme Court issued a decision stating that safe harbor protection does not shield allegedly fraudulent “transfers" in which financial institutions served as mere conduits.” In Merit Management Group LP v. FTI Consulting Inc., the Supreme Court held that a pre‐bankruptcy payment made by the debtor was not protected by the safe harbor and might, therefore, be recovered.
In this LIVE Webcast, Mr. Matthew J. Gold, Partner at Kleinberg, Kaplan, Wolff & Cohen, P.C., will provide and present an in‐depth analysis of the Merit Management Group LP v. FTI Consulting Inc. ruling as well its implications in the near future. He will also discuss the recent developments and important issues surrounding the Bankruptcy Code’s safe harbor protection provision.
Key topics include:
- Merit Management Group LP v. FTI Consulting Inc.
- Restrictions on the Scope of §546(e) After the Decision
- Implications of the Merit Decision
- New Scopes and Limitations
- Recent Trends, Updates and Developments
Kleinberg, Kaplan, Wolff & Cohen, P.C.
- The Bankruptcy securities safe harbors insulate securities transactions from some of the negative effects of a counterparty bankruptcy
- The safe harbors have become increasingly important as a defense against bankruptcy clawback actions
- The Supreme Court’s decision in Merit Management has weakened these defenses
- Careful planning is required to ensure that future transactions receive maximum protection from the safe harbors
Who Should Attend:
- Financial Executives
- Financial Reporting Professionals
- Mergers and Acquisitions Lawyers/Practitioners
- Bankruptcy Lawyers and Attorneys
- Bankruptcy Professionals
- Compliance Officers
- In-house Counsel
- Top Level Management
- Public and Private Companies
- Other Related/Interested Professionals
Matthew Gold has extensive experience representing secured and unsecured creditors, creditors' committees, debtors, landlords, trustees and acquirers of assets in chapter 11 reorganizations, chapter 7 liquidations, voluntary and involuntary cases, SIPA proceedings, and out-of-court workouts and restructurings. He has prosecuted and defended preference and fraudulent conveyance actions, negotiated and confirmed plans of reorganization and disclosure statements, drafted and negotiated asset sales, and given non-consolidation opinions. Matt has practiced before courts in New York and around the country.
Print and review course materials
Method of Presentation:
General knowledge in Bankruptcy Law
NY Category of CLE Credit:
Areas of Professional Practice
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About Kleinberg, Kaplan, Wolff & Cohen, P.C.
Founded in 1971, Kleinberg, Kaplan, Wolff & Cohen, P.C. is a mid-sized New York law firm with a deep commitment to client service, professional excellence and creative solutions. Its attorneys represent clients across a broad range of industries on transactional, regulatory, trusts and estates, tax, real estate, litigation and securities matters. Nationally recognized for our private investment funds and M&A practices, it also acts as legal counsel to fund managers, public companies, privately held businesses and high net worth individuals.