Avoidance Actions: Circuit Splits on Key Issues

This CLE webinar will guide counsel through the evolving positions of courts on four key issues that arise in avoidance actions. The panel will discuss competing views about whether and when avoidance actions must benefit the estate, whether fraudulent transfer recoveries should be limited to the number of creditor claims, the lookback period under Section 544(b)(1) (and the definition of "allowable"), and the extraterritorial reach of the bankruptcy court to reach property in the hands of a non-U.S. affiliate or subsidiary of the debtor.

Creditor recoveries often hinge on the success of clawback lawsuits under Sections 544, 547, 548, and 549 of the Bankruptcy Code that trustees or debtors-in-possession bring under bankruptcy and non-bankruptcy law.

The law is changing, and court rulings have split on four essential and recurring issues in avoidance actions regarding unwritten defenses, the amount of recovery, the lookback period, and from whom recovery may be obtained.

The bankruptcy court's analysis of these issues affects burden of proof and the scope of review on appeal. Outside bankruptcy, how courts view these issues can affect how parties structure transactions and representations required of buyers and sellers, borrowers, and lenders.

Listen as this experienced panel guides counsel through the evolving law on these recurring and essential issues.