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Expert Analysis

Navigating The 546(e) Safe Harbor Provision

Law360, New York (December 19, 2012, 5:15 PM EST) -- Navigating section 546(e), one of the Bankruptcy Code's safe harbor provisions, requires a delicate balance of academics and practical reality. While there is scant case law directly on point, courts have provided important guidance and, generally, will defer to industry norms in determining whether agreements are forward contracts and immune from avoidance. A recent decision by the Fifth Circuit Court of Appeals ― MBS Management Services Inc. v. MXEnergy Electric Inc. ― further defines the contours of section 546(e) and offers lessons that may help companies prevent certain transfers from being clawed back....

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