Excerpt from Practical Guidance

Structuring LBO Payments After NY Ch. 11 Ruling

By Charles Oellermann and Mark Douglas (August 13, 2020, 2:50 PM EDT) -- In 2019, the U.S. Court of Appeals for the Second Circuit made headlines when it ruled that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout of Tribune Co. were preempted by the safe harbor for certain securities, commodity or forward contract payments contained in Section 546(e) of the Bankruptcy Code.

The Second Circuit concluded that a debtor may itself qualify as a financial institution covered by the safe harbor and thus avoid the implications of the U.S. Supreme Court's decision in Merit Management Group LP v. FTI Consulting Inc.,[1] by retaining a bank or trust company as...

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