In his latest article for The Bankruptcy Strategist titled, “Split Second Circuit Narrows Bankruptcy Code’s Settlement Payment Safe Harbor,” Schulte Roth & Zabel of counsel Michael L. Cook details the Second Circuit’s split decision in In re Nine West LBO Securities Litigation.

Two streams of payments to shareholders in a leveraged buyout (LBO), totaling $4 million (Certificate Transfers) and $1.101 billion (DTC Transfers), made through a paying agent bank, were “safe harbored under [Bankruptcy Code §546(e), but “Payroll Transfers,” totaling $78 million, made to the debtor’s “directors, officers and employee shareholders through its payroll program … [were] not so shielded,” from fraudulent transfer claims, held the Second Circuit in a split decision. In re Nine West LBO Securities Litigation, 2023 WL 8180356, *4 (2d Cir. Nov. 27, 2023) (2-1). The majority opinion turned on “the scope of the term ‘financial institution’ as defined in [Code] §101(22)(A)” when applied to the paying agent bank and its customer, the debtor here. Id. In the majority’s view, “the definition encompasses bank customers [i.e., the debtor] only in transactions with the bank acting as their agent ….” Id.