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来源：小宇宙
John is joined by Christopher D. Kercher and Peter H. Fountain, both partners in Quinn Emanuel’s New York office. They discuss their recent representation of Citadel Securities, one of the world’s largest market makers, in connection with a case concerning Mallinckrodt, a pharmaceutical company forced into bankruptcy due to opioid litigation. The central issue was whether $1.6 billion in stock share buybacks conducted between 2015 and 2018 could be recovered by the bankruptcy estate as fraudulent transfers.
The legal theory advanced by a litigation trust formed during the bankruptcy was unprecedented, as it sought to void Mallinckrodt’s share repurchases on the open market, which were made in the ordinary course of business. The trust contended that, under Irish law (Mallinckrodt was an Irish corporation), these repurchases were void because Mallinckrodt should have recognized that it was insolvent due to substantial opioid-related tort liabilities that were not reflected on its balance sheet.
The litigation trust characterized these sales as constructive fraudulent conveyances, asserting that Mallinckrodt lacked adequate capital when executing the buybacks. The trust sought to claw back the full $1.6 billion from ordinary market participants who had sold shares years prior, basing their argument on limited precedent from Enron-related cases from the 1980s.
The defense successfully challenged these claims by invoking the Section 546(e) bankruptcy safe harbor provision. This provision is intended to preserve finality in financial markets and protect legitimate securities transactions. The defense emphasized that Citadel and similar market makers qualified as financial participants and that the share repurchases constituted protected settlement payments and transfers pursuant to securities contracts under the safe harbor provision.
Accepting the litigation trust’s theory would require market makers to investigate not only the published financial statements of every traded company, but also hidden tort liabilities and the corporate laws of each jurisdiction of incorporation, before facilitating any transactions. Both the bankruptcy and district courts recognized that imposing such obligations would paralyze financial markets and defeat the purpose of the safe harbor provision, and rejected the trust’s novel claims.
The legal theory advanced by a litigation trust formed during the bankruptcy was unprecedented, as it sought to void Mallinckrodt’s share repurchases on the open market, which were made in the ordinary course of business. The trust contended that, under Irish law (Mallinckrodt was an Irish corporation), these repurchases were void because Mallinckrodt should have recognized that it was insolvent due to substantial opioid-related tort liabilities that were not reflected on its balance sheet.
The litigation trust characterized these sales as constructive fraudulent conveyances, asserting that Mallinckrodt lacked adequate capital when executing the buybacks. The trust sought to claw back the full $1.6 billion from ordinary market participants who had sold shares years prior, basing their argument on limited precedent from Enron-related cases from the 1980s.
The defense successfully challenged these claims by invoking the Section 546(e) bankruptcy safe harbor provision. This provision is intended to preserve finality in financial markets and protect legitimate securities transactions. The defense emphasized that Citadel and similar market makers qualified as financial participants and that the share repurchases constituted protected settlement payments and transfers pursuant to securities contracts under the safe harbor provision.
Accepting the litigation trust’s theory would require market makers to investigate not only the published financial statements of every traded company, but also hidden tort liabilities and the corporate laws of each jurisdiction of incorporation, before facilitating any transactions. Both the bankruptcy and district courts recognized that imposing such obligations would paralyze financial markets and defeat the purpose of the safe harbor provision, and rejected the trust’s novel claims.
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JoeyJZ
2个月前
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处在破产程序中的是一家爱尔兰的医药公司；原告为诉讼信托（截至目前，国内似乎不存在类似主体，可以将其简单理解为破产管理人的特别分支）；被告为一家做市商。
原告主张医药公司在公司正常经营过程中，在公开市场已经完成的股票回购是无效的。理由是医药公司本应意识到公司已经因巨额的阿片类药物侵权责任而资不抵债，因此根据爱尔兰法律，上述回购是无效的。值得注意的是，上述侵权责任并未体现在其资产负债表。原告还认为此类回购构成推定欺诈性转移，理由是医药公司在实施回购时已经资本不足。
原告的最终目的是从向医药公司出售股票的其他市场主体手中追回16亿美元。
被告通过援引一项法定的避风港条款成功答辩，法院驳回了原告的请求。
该避风港条款主要是为了维护金融市场的确定性、保护合法的证券交易。被告强调做市商是适格的金融市场主体，且根据该避风港条款，相关股票回购交易构成应受保护的证券结算支付和转让。
假设法院接受了原告的请求，则会要求所有做市商在交易前，必须调查每一家上市公司的 (1) 公开财务报表、 (2) 潜在的侵权责任、以及 (3) 注册地所在司法管辖区的公司法律法规。法院认为对做市商施加如此重大的义务，将导致金融市场瘫痪，并违背上述避风港条款的立法目的。
