Section 546(e) Bankruptcy Safe Harbor Exemptions: Recent Developments

Avoiding or Defending Fraudulent Transfer and Preference Challenges to Securities Transactions, LBO Shareholder Payments, Derivatives, Swaps and Other Financial Contracts

NY bankruptcy court issues long-awaited ruling in Lehman bankruptcy case

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

Conducted on Thursday, June 28, 2012

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will provide practitioners with a solid understanding of the scope and limits of the safe harbor provisions for financial contracts. The panel will analyze lessons from recent case law and outline best practices for defending the preference and fraudulent transfer safe harbor.


As the safe harbor provisions for financial contracts continue to be tested in bankruptcy litigation, case law is constantly evolving. Safe harbors for many financial contracts have been widely tested in the Lehman bankruptcy with the most recent ruling in favor of JPMorgan Chase on Apr. 19, 2012.

In Mar. 2012, the New York federal district dismissed the Madoff trustee’s claim to avoid payments to BLMIS customers as preference payments and fraudulent transfers. The court ruled the payments were protected by both the “settlement payment” and “securities contracts” safe harbor provisions.

As past LBOs get challenged in bankruptcy, payments to shareholders come under attack and courts struggle to apply safe harbors to these payments. The Tribune creditor litigation warns that safe harbors to protect shareholders from trustee suits do not extend beyond the bankruptcy proceedings.

Listen as our authoritative panel of attorneys discusses the scope and limit of the safe harbors, recent case law developments and best practices for defending the fraudulent transfer safe harbor.



  1. Section 546 safe harbors
    1. Settlement payments
    2. Repurchase agreements
    3. Swap agreements
    4. Master netting agreements
  2. Recent case law developments
    1. Lehman bankruptcy developments, including LBHI v. JPMorgan Chase Bank
    2. Madoff litigation
    3. Leveraged buyout transaction litigation
    4. Other financial contracts and commercial paper


The panel will review these and other key questions:

  • What trends have developed regarding the settlement payment safe harbor in leveraged buyout transactions?
  • How are ipso facto and bankruptcy clauses relevant to the safe harbor protections of the Code?
  • What lessons can be taken from the Lehman bankruptcy case?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Mark D. Sherrill
Mark D. Sherrill

Sutherland Asbill & Brennan

He focuses his practice on counseling debtors and creditors in financial restructurings, litigation and workouts, and...  |  Read More

David A. Wender
David A. Wender

Alston & Bird

Mr. Wender represents a variety of clients in complex bankruptcy cases, out-of court workouts, debt restructurings,...  |  Read More

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