Payments Made to Purchase Notes Are Exempt from Avoidance Under Section 546(e) of the Bankruptcy Code

June.11.2013

This Financial Industry alert describes a recent Second Circuit decision holding that payments made by a company to purchase notes issued by an affiliate were transfers made in connection with a “securities contract,” and therefore, pursuant to Section 546(e) of the Bankruptcy Code, could not be avoided as preferential transfers.

Authors

Thomas C. Mitchell Senior Counsel, Restructuring, Banking & Finance

San Francisco

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D:+1 415 773 5732
E: [email protected]

Practice:

Finance Sector
Restructuring
Banking & Finance
Structured Finance

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Thomas C. Mitchell Senior Counsel

San Francisco

He has represented secured and unsecured creditors, indenture trustees and others in bankruptcies and workouts in a variety of industries, including technology, rail transportation, air transportation, securities trading, commodities trading, supermarket, automobile sales, construction (including solar energy), retailing, convenience store, health care, telecommunications, film and television production, restaurant, home construction, real estate development, and equipment manufacturing.

He also has extensive experience in the structuring of asset securitization transactions to resolve bankruptcy and commercial law issues, representing issuers, underwriters, and credit enhancers with respect to many asset types, including mortgage loans (residential and commercial, U.S. and foreign), credit cards (secured and unsecured), trade receivables (U.S. and foreign), consumer and marketplace loans, property assessed clean energy (PACE), delinquent property tax receivables, tobacco settlement payments, attorneys’ fee payments in connection with the tobacco settlement, whole business securitization, home equity loans, auto loans, time share loans, excess servicing fees, manufactured home loans, aircraft leases, home relocation receivables, defaulted receivables, electric utility stranded costs, franchise loans, dealer floorplan loans, equipment leases, mutual fund fees, limited partnership interests, bank funds flows, annuity fees, health care receivables, insured student loans, repackaged securities, viatical loans, and insurance premium receivables. In addition, he has been responsible for commercial law and bankruptcy structuring of collateralized debt obligations, municipal derivatives, lease to service contracts, Indian tribe financings, and a wide variety of public finance transactions and project finance transactions. He also represents borrowers and lenders in secured transactions.

IFLR1000, US and California Restructuring and Insolvency, Notable Practitioner, 2021

Mentioned in the Structured Finance: Securitization category of The Legal 500 US 2021

Jonathan Guy Senior Counsel, Restructuring, Bankruptcy Litigation

Washington, D.C.

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D:+1 202 339 8516
E: [email protected]

Practice:

Restructuring
Bankruptcy Litigation
Complex Litigation & Dispute Resolution

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Jonathan Guy Senior Counsel

Washington, D.C.

Chambers USA has variously described Mr. Guy as someone who is a "zealous advocate for his clients," is "valued for his quick and practical advice," "makes fantastically impressive presentations in court," is able to "listen to a large amount of information" in court and "reduce an argument to its essence," and is an "expert in commercial and bankruptcy-related litigation."

Mr. Guy is ranked in Chambers USA as a Senior Statesperson for District of Columbia Bankruptcy/Restructuring and in the Thomson Reuters Washington, D.C. Super Lawyers category for business litigation. He is the former Chair of the Community Responsibility Committee for the Washington, D.C. office and was long active in numerous pro bono cases.

Nikiforos Mathews Partner, Derivatives, Structured Finance

New York

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D:+1 212 506 5257
E: [email protected]

Practice:

Finance Sector
Derivatives
Structured Finance
Energy
Infrastructure

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Nikiforos Mathews Partner

New York

His practice focuses on representing financial institutions, governmental and regulated entities, hedge funds and corporate end-users in developing, structuring and negotiating a broad range of fixed income, foreign exchange, commodity, energy and credit derivative products. Among other things, he has successfully negotiated numerous domestic and cross-border lien-secured hedging transactions relating to leveraged loans and infrastructure transactions, as well as deal-contingent hedges. In addition, Nik has significant experience in foreign exchange and fixed income prime brokerage issues, as well as various structured products. He also regularly advises clients in connection with derivatives regulation, including the application of the Dodd-Frank legislation and related regulations. Also, Nik provides counsel on close-out netting matters and UCC issues relating account control arrangements for collateral. Nik regularly advises on the structuring and negotiation of energy and commodity hedging transactions, as well as swap regulatory matters relating to VPPAs. Moreover, on a regular basis, Nik represents market participants on the termination and close-out of derivatives and other products, including providing advice on related bankruptcy matters.

Nik is lead editor of Orrick’s publication, Derivatives in Review, which periodically highlights important legal, regulatory and other newsworthy developments in the area of derivatives. He has also published articles in several journals, including on rating agency hedge criteria in connection with structured finance transactions.

Before joining Orrick, Nik was vice president and assistant general counsel at Goldman, Sachs & Co. and director and counsel at UBS AG. He also served as a law clerk to the Honorable Nicholas Tsoucalas of the United States Court of International Trade.

From 1999 to 2007, Nik held a commission as a Captain in the United States Army Reserve, where he was qualified to practice as a Judge Advocate. A veteran of both Operations Iraqi Freedom and Enduring Freedom, he served as an Operational and Administrative Law attorney in Kuwait, Iraq and Afghanistan.