Bankruptcy Preference Actions: Litigating the Ordinary Course of Business Defense When Nothing is Ordinary

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Wednesday, June 16, 2021

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will review the ordinary course of business defense to preference actions. The program will help counsel identify new strategies applicable when practices between the parties and in their industry are or have become anything but ordinary. The panel will also explore the limits on the bankruptcy court's discretion in interpreting "ordinary."

Description

Creditors who the debtor paid within the 90 days (longer in some cases) could not be forced to disgorge them if they were made in the "ordinary course of business" between the creditor and debtor or made according to the ordinary business terms in the industry.

The Bankruptcy Code does not define "ordinary course of business" or "ordinary terms." While certain methods and conventions have developed to establish these defenses, they are not likely to work when entire industries and economies have been thrown into chaos. Counsel will need to have strategies and arguments for asking the bankruptcy courts to modify or change their analysis.

The Consolidated Appropriation Act of 2021 (CAA) protects some creditors who accommodated their obligors. Still, the CAA does not cover many common types of obligations, including leases of personal property or goods and services sold by purchase orders not subject to a master agreement.

Listen as this panel reviews the ordinary course of business defense, the CAA, and best strategies for asserting the ordinary course of business defense in extraordinary situations.

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Outline

  1. Introduction
  2. Understanding the debtor's billing processes
  3. Ordinary between the parties
  4. Ordinary terms
  5. Impact of the CAA

Benefits

The panel will review these and other notable questions:

  • What are best practices for preventing a creditor from becoming a target of a preference action?

Faculty

Best, Brendan
Brendan G. Best

Partner
Varnum

Mr. Best is a partner, chair of Varnum's Restructuring Group, and co-leader of the Banking, Restructuring, and...  |  Read More

Kovsky-Apap, Deborah
Deborah Kovsky-Apap

Partner
Troutman Pepper

Ms. Kovsky-Apap focuses her practice on bankruptcy and out-of-court workouts. She also has substantial litigation...  |  Read More

Phillips, Brian
Brian Phillips

Director
Capstone Partners

Mr. Phillips is a Director with Capstone Headwaters’ Financial Advisory Services (FAS) Group. With 30 years of...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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