“Safe Harbor” for Fraudulent Transfer Claims: Significant Issues in 2016
Fraudulent transfer law prevents a debtor from transferring their assets to another person or entity with the intentions of delaying, hindering, or defrauding a creditor, leaving little or no value in their estates to satisfy the claims. The “safe harbor” of Section 546(e) thwarts, among other things, a trustee from avoiding or delaying certain securities transactions that would otherwise be avoidable under the Bankruptcy Code.
Fraudulent transfer avoidance actions that received fees for services arising from failed leveraged buyouts (LBOs) are prevalent in today's market. As a matter of fact, it is expected that future cases involving LBOs and restructuring fraudulent transfer claims will be inevitable, so it is crucial for creditors to have a roadmap to navigate the murky waters of safe harbor and the changing landscape of fraudulent transfer actions.
In this light, a panel of distinguished professionals, key thought leaders, and a financial consultant assembled by The Knowledge Group will elaborate in a two-hour LIVE Webcast the extent and applicability of the safe harbor provision and notable fraudulent transfer actions. Speakers will also offer a discussion on the fundamentals as well as updates regarding the latest and significant financial issues surrounding fraudulent transfer action and will explain the implications of fraudulent transfer laws to creditors and the different fraudulent laws from each jurisdiction.
Some of the major topics that will be covered in this course are:
- Section 546(e) of the Bankruptcy Code: An Overview
- "Safe Harbor" Defense
- New Developments in Fraudulent Conveyance Law
- Bankruptcy Code’s “Safe Harbor” Protection from Fraudulent Transfer Claims
- Scope and Limitations of Section 546(e)
- Actual Fraud vs. Constructive Fraud
- Solvency Analysis
- Leveraged Buyouts
- Implications to the Transaction Structure of a Distressed Investment Opportunity
- Up-to-the-Minute Legal and Regulatory Updates
- What are the Safe Harbors insulated from attack as fraudulent transfers?
- The scope of the Safe Harbor for Settlement of Securities Contracts
- Limitations on the settlement payment Safe Harbor
- Does it apply to actions by individual creditors or just Trustees?
- Does it apply to state law actions, or only actions under Section 548 of the bankruptcy Code?
- Recent cases of Interest: Tribune, Lyondell, Whyte and others
- Crystal Ball Gazing—Will the U.S. Supreme Court address the issues?
- Describe what a fraudulent transfer is and the two types (intentional and constructive).
- Discuss Bankruptcy Code Section 548.
- Discuss what a solvency analysis is and the 3 main tests of solvency.
- Discuss how LBOs can lead to a determination of constructive fraud.
Who Should Attend:
- Bank and Financial Institution Auditors
- Bank and Financial Institution Executives
- Bank Regulation Lawyers
- Debtors and Creditors
- Bankruptcy Lawyers and Practitioners
- Fraud Analysts
- Fraud Executives at Banking and Financial Institutions
- Corporate Attorneys
- Other Related/Interested Professionals
William Gray is head of the firm’s U.S. Restructuring Practice. He represents financial institutions, creditors, borrowers, acquirers and committees in complex restructurings, bankruptcy mergers and acquisitions, and major litigations. The practice also encompasses representation of DIP lenders, asset-based lenders and providers of chapter 11 exit financing. Presently, Bill acts as special counsel to the Nortel (US) companies in their chapter 11 reorganization cases.
During the financial crisis of 2008 and its aftermath, Bill advised a number of U.S. and Canadian banks, financial institutions and pension funds with regard to their lending relationships, brokerage and security agreements, and other transactional interactions with troubled U.S. financial institutions, including Lehman Brothers, AIG, and Bear Stearns. Bill was heavily involved on behalf of major financial institutions in a number of restructuring matters arising out of the collapse of the Russian economy in 1998. As an example, he represented certain investment funds, managed by McGinnis Advisors, which had invested in Russia-based derivative securities in their chapter 11 cases in Texas.
William Gray is head of the firm’s U.S. Restructuring Practice. He represents financial institutions, creditors, borrowers, acquirers and committees in …
David Berliner is a Partner in BDO Consulting, a CPA, CIRA and CTP with more than 25 years of experience in matters involving business restructurings, bankruptcy & insolvency, bankruptcy litigation and forensic investigations. He has been involved in bankruptcies and work-out situations representing unsecured creditors, debtors, and lenders, various bankruptcy litigation matters and has provided testimony at depositions and in bankruptcy court. Mr. Berliner has significant experience in bankruptcy and restructuring matters involving the retail, manufacturing, distribution and service industries.
David Berliner is a Partner in BDO Consulting, a CPA, CIRA and CTP with more than 25 years of experience …
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Method of Presentation:
Experience in bankruptcy
NASBA Field of Study:
Business Law - Technical
NY Category of CLE Credit:
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About Torys LLP
Torys LLP is a full-service business law firm with offices in Toronto, New York, Calgary and Montréal. Torys is consistently recognized as one of Canada’s leading law firms. From our New York office we support Canadian clients doing business in the United States as well as U.S. based organizations.
About BDO Consulting
BDO Consulting, a division of BDO USA, LLP, provides litigation, investigation, business restructuring, valuation, and risk advisory services to clients in the United States and internationally. Our highly experienced and well-credentialed professionals draw upon a range of industry knowledge and completed consulting engagements throughout the U.S. and internationally to provide clients with unparalleled service.
BDO Consulting leverages the global industry and accounting knowledge of the BDO International network, providing rapid, strategic advice to assist our clients with financial advisory, business restructuring, out-of-court workouts, litigation, dispute resolution, risk management, financial solvency, and regulatory compliance issues. BDO Consulting provides financial advisory services on behalf of debtors, lenders, bondholders, unsecured creditors, stockholders, investors, trustees and examiners. Our business restructuring services include turnaround, interim crisis management services, profit improvement, bankruptcy/out-of-court workouts, and litigation services.