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Turbulence Continues in 'Safe Harbors '
Last month, Part One of this two-part article discussed the prosecution of post-confirmation state law fraudulent transfer claims in the Lyondell case and highlighted conflicting views coming from within the United States Bankruptcy and District Courts for Southern District of New York.
This month, I discuss a recent decision in the Lehman Chapter 11 case, where the bankruptcy court held that the methodology to be used to calculate amounts due in connection with the liquidation of certain swap transactions under Bankruptcy Code section 560 is governed by the contractual terms of the relevant master swap agreement and accompanying schedule and such terms are not invalidated by ipso facto provisions contained in the Bankruptcy Code. See Michigan State Housing Dev. Auth. v. Lehman Bros. Deriv. Prods. Inc. (In re Lehman Bros. Holdings Inc.), No. 08-13555, —B.R. —-, 2013 WL 6671630 (Bankr. S.D.N.Y. Dec. 19, 2013).
This decision represents a broader plain meaning interpretation of the section 560 safe harbor provision for swap agreements, and departs from bankruptcy court's prior much narrower flip-clause rulings. One remaining question that counterparties will face, however, is how to determine whether a contractual right contained in a swap agreement is sufficiently “baked” into the agreement so as to be protected by the section 560 safe harbor.
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