Preference Actions: Clarifying the Trustee's Pre-Filing Due Diligence Requirements in Section 547(b)
Ending the Practice of Filing Preference Actions Without Assessing the Merits
Recording of a 90-minute CLE video webinar with Q&A
This CLE course will discuss current developments about the trustee's pre-filing obligations under Section 547(b) of the Bankruptcy Code. The Bankruptcy Code does not define "reasonable due diligence in the circumstances of the case" nor what it means to take "into account a party's known or reasonably knowable affirmative defenses." This webinar will review the current state of the law, identify divergent approaches, and offer best practices and options in this continually developing area.
Outline
- Section 547(b) prefiling requirements
- Reasonable due diligence in the circumstances of the case
- Known or knowable defenses under 11 USC 547(c)
- Common defenses
- Contemporaneous exchange
- Ordinary course of business
- New value
- Consequences of failing to comply with one or both requirements
- Judgment
- Bankruptcy Rule 9011
- Venue issues in 28 USC 1409(b)
Benefits
The panel will review these and other essential matters:
- What is "reasonable due diligence in the circumstances of the case"?
- What is "a known or reasonably knowable affirmative defense"?
- Will the plaintiff's analysis of defenses, if done by attorneys or accountants, be privileged or discoverable?
- How will defendants establish a lack of due diligence or failure to take known defenses into account?
- What are the consequences if a court finds that these conditions are not met?
Faculty
David A. Blansky
Senior Attorney
Dunn Law
Mr. Blansky's practice focuses on commercial and business litigation. He frequently prosecutes avoidance claims on... | Read More
Mr. Blansky's practice focuses on commercial and business litigation. He frequently prosecutes avoidance claims on behalf of bankruptcy trustees and other plaintiffs in the Bankruptcy Courts for the Eastern and Southern Districts of New York and in the Courts of the State of New York. Mr. Blansky is a frequent speaker on the subject of avoidance litigation, having most recently lectured on New York State’s adoption of the Uniform Voidable Transactions Act, which significantly modernize the fraudulent conveyance law of the State of New York.
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Alan C. Hochheiser
Principal
Maurice Wutscher
Mr. Hochheiser is a leading practitioner in the areas of creditors’ rights and bankruptcy law. He advises and... | Read More
Mr. Hochheiser is a leading practitioner in the areas of creditors’ rights and bankruptcy law. He advises and represents businesses, regional and national banks, credit unions, equipment lessors and other lenders, as well as secured and unsecured creditors.
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Matthew Kerschner
Managing Associate
Thompson Hine
Mr. Kerschner is a managing associate in the firm's Business Restructuring, Creditors’ Rights &... | Read More
Mr. Kerschner is a managing associate in the firm's Business Restructuring, Creditors’ Rights & Bankruptcy practice group. He focuses his practice on complex commercial transactions, workouts and bankruptcy matters.
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