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Ralph Brubaker, Bruce Alan Markett, Charles W. Mooney, Jr. & Mark J. Roe, Amicus Brief on the Scope of the Bankruptcy Safe Harbor for Securities Settlement (Univ. Ill. Coll. of Law Legal Studies Research Paper No. 18-1, Oct. 5, 2017).

Abstract: Bankruptcy Code § 546(e) contains a safe harbor that prevents avoidance of a securities settlement payment, e.g., as a preferential or constructively fraudulent transfer. This amicus brief was filed in Merit Mgmt. Grp. v. FTI Consulting, Inc., No. 16-784 (U.S.). The brief explains how § 546(e) rationally constrains its scope via the statutory specification that the safe harbor only applies (because it need only apply) if the “transfer” sought to be avoided was allegedly “made by or to (or for the benefit of)” a protected securities market intermediary, such as a stockbroker or a financial institution. Ascertaining the meaning and function of that determinative scope language requires an understanding of (1) the concept of a “transfer” as the fundamental analytical transaction unit throughout the Code’s avoidance provisions, and (2) the relationship between that avoidable “transfer” concept and the inextricably interrelated concepts of who that “transfer” is “made by or to (or for the benefit of).” By its express terms, § 546(e) only shields a challenged “transfer” from avoidance if (1) that transfer was “made by” a debtor-transferor who was a qualifying intermediary, “or” (2) a party with potential liability — because the challenged transfer allegedly was made “to or for the benefit of” that party — was a protected intermediary.