Tag Archives: Second Circuit

Are Invoice Terms Alone Sufficient to Establish Contemporaneous Exchange for New Value or Ordinary Course of Business Defenses? In Cousins Fish Market, Second Circuit Offers Guidance

By Evan T. Miller, Esq.

The United States Court of Appeals for the Second Circuit (the “Second Circuit”) recently affirmed the judgment of the United States District Court for the Northern District of New York (the “District Court”) in John Nagle Co. v. McCarthy (In re The Cousins Fish Market, Inc.), 2016 WL 3854277 (2d Cir. July 12, 2016), which in turn had affirmed a decision of the district’s bankruptcy court (together with the District Court, the “Lower Courts”), finding the Lower Courts properly ruled that the defendant (“Defendant”) had not established its affirmative section 547(c) defenses. Continue reading

In re Lyondell Chemical Co. 2016 Update – Judge Gerber Finds Pre-Merger D&Os Did Not Possess Actual Intent to Hinder, Delay or Defraud Creditors in Prepetition Leveraged Buyout

By Evan T. Miller, Esq.

As a follow-up to the In re Lyondell Chemical Co. opinion Judge Gerber issued in November 2015, in which he ruled on various avoidance action claims against the Debtors’ shareholders (the “Shareholder Opinion”, whose related blog post can be found here), the Court issued an opinion last week addressing similar claims against the Debtors’ Pre-Merger directors and officers (the “Pre-Merger Directors and Officers”). Continue reading

LBOs, BODs, and Fraudulent Transfers: Judge Gerber Clarifies When a Board Has Actual Intent to Hinder, Delay or Defraud Creditors in a Prepetition Leveraged Buyout in In re Lyondell Chemical Co.

By Evan T. Miller, Esq.

Judge Gerber, a bankruptcy judge sitting in the Southern District of New York, recently issued an opinion denying in part and granting in part motions to dismiss filed by fraudulent transfer defendants in three separate adversary proceedings. Continue reading