Description

The law of fraudulent transfers is ever changing in response to creative theories by both plaintiffs and defendants to protect assets and level the playing field if a debtor becomes insolvent. Recovering or defending against constructive or allegedly intentionally fraudulent transfers is a staple of bankruptcy practice.

The evolving fraudulent transfer landscape will affect present and future litigation strategies, as well as how transactional lawyers assess risks and structure new deals to withstand analysis made in hindsight. Decisions from certain jurisdictions or in high profile cases may have a disproportionate impact, especially if deal documents provide that the laws in those jurisdictions should govern.

Updated case law addresses core issues such as when valuation of a negotiated deal can be attacked, standing and who owns the claims, whether transfers must damage creditors to be recoverable, caps on recovery, how to analyze Section 544, and the availability of safe harbors. Of particular interest are changes as to when actual intent to hinder, delay, or defraud may not be required and intent imputed to innocent parties.

It is imperative that bankruptcy attorneys litigating and settling these claims recognize the impact of these developments and adjust their approaches to achieve the client's goals.

Listen as our panel discusses significant federal and sometimes state law decisions on game-changing topics that impact pursuing or defending fraudulent conveyance litigation.