Ipso Facto Clauses And The Anti-Deprivation Rule

Law360 (February 10, 2010, 1:28 PM EST) -- On Jan. 25, 2010, the United States Bankruptcy Court for the Southern District of New York entered an order granting summary judgment in favor of Lehman Brothers in a dispute involving so-called “flip clauses” contained in collateralized debt obligation (CDO) transactions.

Flip clauses — designed to reorder payment priorities in CDO transactions — seek to ensure that a defaulting swap counterparty is not paid any termination payments until the noteholders are repaid in full. The purpose of these types of provisions is to prevent a defaulting swap counterparty from benefiting as a result of its own default at the expense of...

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