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1 No IN THE Supreme Court of the United States OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF QUEBECOR WORLD (USA) INC., v. AMERICAN UNITED LIFE INSURANCE COMPANY, ET AL., Petitioner, Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF OF THE NATIONAL ASSOCIATION OF BANKRUPTCY TRUSTEES AS AMICUS CURIAE IN SUPPORT OF PETITION PAUL STEVEN SINGERMAN Counsel of Record ILYSE M. HOMER ISAAC M. MARCUSHAMER LARA E. O DONNELL BERGER SINGERMAN LLP 1450 Brickell Avenue, Ste Miami, FL singerman@bergersingerman.com Attorneys for Amicus Curiae A (800) (800)

2 i TABLE OF CONTENTS Page TABLE OF CONTENTS i TABLE OF CITED AUTHORITES ii STATEMENT OF INTEREST OF AMICUS CURIAE.. 1 REASONS FOR GRANTING THE PETITION I. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE EXISTING CIRCUIT CONFLICT ON THE ISSUE PRESENTED CREATES LACK OF UNIFORMITY IN OUR BANKRUPTCY SYSTEM IN AN IMPORTANT AREA OF LAW A. Federal Circuits Are Split On Whether The 546(e) Exemption To A Trustee s Avoidance Power Reaches Entities Acting As Mere Intermediaries For Transferred Property i. In Munford, the Eleventh Circuit holds that transfers through a financial institution acting solely as an intermediary do not fall within the scope of the 546(e) exemption

3 ii Table of Contents Page ii. Various circuits, including the court below, erroneously reject Munford, holding that transfers through a mere intermediary are exempt under 546(e) from a trustee s avoidance powers iii. The above represents a direct and important conflict regarding interpretation of the bankruptcy code II. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE CASE RAISES AN IMPORTANT AND RECURRING QUESTION CONCERNING THE ABILITY OF TRUSTEES TO EFFECTIVELY ADMINISTER BANKRUPTCY CASES

4 iii TABLE OF CITED AUTHORITIES CASES Page Contemporary Industries Corp. v. Frost, 546 F.3d 981 (8th Cir. 2009) , 7 Cunningham v. Brown, 265 U.S. 1 (1924) , 13 In re Chase & Sanborn Corp., 848 F.2d 1196 (11th Cir. 1988) In re Munford, Inc., 98 F.3d 604 (11th Cir. 1996) passim In re QSI Holdings, Inc., 571 F.3d 545 (6th Cir. 2009) , 6 In re Quebecor World (USA) Inc., 719 F.3d 94 (2d Cir. 2013) , 8 In re Resorts International, Inc., 181 F.3d 505 (3d Cir. 1999) , 6 Union Bank v. Wolas, 502 U.S. 151 (1991) , 9

5 iv Cited Authorities STATUTES AND AUTHORITIES Page 11 U.S.C U.S.C. 544(b) , 5 11 U.S.C U.S.C. 546(e) passim 11 U.S.C , 9 11 U.S.C. 547(b) , 3, 9 11 U.S.C U.S.C. 548(a)(1)(A) U.S.C. 548(a)(1)(B) U.S.C. 548(b) U.S.C , 9

6 1 STATEMENT OF INTEREST OF AMICUS CURIAE 1 The National Association of Bankruptcy Trustees (NABT) is a nonprofit professional association formed in 1982 to address the needs of chapter 7 bankruptcy trustees and promote the effectiveness of the bankruptcy system as a whole. The NABT is committed to improving the administration of bankruptcy by promoting professionalism, education, and the open exchange of ideas among its members and other members in the bankruptcy community. Trustees are private citizens who act as fiduciaries in administering chapter 7 bankruptcy cases and upholding the integrity of those proceedings. A trustee is appointed as a disinterested, independent person and works primarily for the benefit of the debtor s unsecured creditors. There are approximately 1,100 chapter 7 trustees who are currently receiving new cases, a majority of whom are NABT members. Trustees are familiar with the bankruptcy process and have a depth of experience relating to the disposition of estate assets and in recovering those assets for the estate. Chapter 7 trustees also frequently serve as trustees over liquidating or litigation trusts that are formed as part of confirmed chapter 11 plans. 1. Undersigned counsel authored this brief pro bono, and no party s counsel authored this brief in whole or in part. No party or party s counsel made a monetary contribution intended to fund the preparation or submission of the brief. No person other than the NABT, its members, or its counsel has made any such monetary contribution. All parties have consented to the filing of this brief and such consents are being submitted herewith.

7 2 A trustee s duties include prosecuting claims held by the estate or successor trust which the creditors are beneficiaries. Critical to a trustee s administrative function is the power to avoid transfers, including preferential transfers under 11 U.S.C. 547(b), and transfers pursuant to other Bankruptcy Code provisions granting avoidance power to trustees. This power allows trustees to, among other things, avoid payments procured by relatively junior creditors in anticipation of bankruptcy. In connection with this authority, 11 U.S.C. 546(e) serves the salutary purpose of limiting those avoidance powers in certain circumstances. However, the Second Circuit s interpretation of 546(e) in the case below substantially and needlessly curtails the avoidance powers of trustees in a manner inconsistent with the Code, threatening the underlying goal of achieving parity among similarly situated creditors. The NABT has an interest in the outcome of this case because an overly expansive view of 546(e) hampers the ability of bankruptcy trustees to exercise their fiduciary duties and to effectively administer estates. The Second Circuit s interpretation of 546(e) severely restricts a trustee s ability to effectively administer an estate through use of the trustee s avoidance powers. The issue is further complicated by the fact that many of the same transfers would not be subject to a 546(e) defense in courts that hold the other way. Thus, this Court s review is needed to resolve the circuit split, provide uniformity in application of the Bankruptcy Code in this important area, correct the Second Circuit s erroneous interpretation of the statute, and thereby advance the Code s purpose of treating similarly situated creditors equally.

8 3 REASONS FOR GRANTING THE PETITION I. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE EXISTING CIRCUIT CONFLICT ON THE ISSUE PRESENTED CREATES LACK OF UNIFORMITY IN OUR BANKRUPTCY SYSTEM IN AN IMPORTANT AREA OF LAW A. Federal Circuits Are Split On Whether The 546(e) Exemption To A Trustee s Avoidance Power Reaches Entities Acting As Mere Intermediaries For Transferred Property Several Bankruptcy Code provisions authorize trustees to avoid property transfers considered to be preferential, fraudulent, or otherwise voidable. See 11 U.S.C. 544, 547, 548. Section 544(b) permits a bankruptcy trustee to avoid transfers of property voidable under state law unless otherwise provided in the Bankruptcy Code. See 11 U.S.C. 544(b). Section 547(b) of the Bankruptcy Code authorizes a bankruptcy trustee to avoid certain property transfers considered to be preferential. See 11 U.S.C. 547(b). Such transfers impair the claims of other creditors, and avoidance allows the trustee to restore equal status to all creditors. See Union Bank v. Wolas, 502 U.S. 151, (1991). Section 546(e) of the Code limits those avoidance powers. It provides: (e) Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) of this title, the trustee may not avoid a transfer that is a margin payment, as defined in section 101, 741, or 761 of

9 4 this title, or settlement payment, as defined in section 101 or 741 of this title, made by or to (or for the benefit of) a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency, or that is a transfer made by or to (or for the benefit of) a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency, in connection with a securities contract, as defined in section 741(7), commodity contract, as defined in section 761(4), or forward contract, that is made before the commencement of the case, except under section 548(a)(1)(A) of this title. 11 U.S.C. 546(e). The above language regarding transfers made by or to (or for the benefit of) a financial institution, where the transfer is a settlement payment or made in connection with a securities contract, is the source of the existing circuit split. The Eleventh Circuit and various lower tribunals hold that the transferee entity must be more than a mere conduit and have a beneficial interest in the funds. See In re Munford, Inc., 98 F.3d 604 (11th Cir. 1996). Several circuits, however, including the court below, expressly reject Munford and hold this language exempts from a trustee s avoidance powers financial institutions that serve as mere conduits or intermediaries for the transferred funds. See In re Quebecor World (USA) Inc., 719 F.3d 94, (2d Cir. 2013); Contemporary Industries Corp. v. Frost, 546 F.3d 981, (8th Cir. 2009); In re QSI Holdings, Inc., 571 F.3d 545, 551 (6th Cir. 2009); In re Resorts International, Inc., 181 F.3d 505, 516 (3d Cir. 1999).

10 5 i. In Munford, the Eleventh Circuit holds that transfers through a financial institution acting solely as an intermediary do not fall within the scope of the 546(e) exemption In considering whether a transfer to an intermediary financial institution falls within the scope of 546(e), the Eleventh Circuit, in In re Munford, Inc., 98 F.3d 604 (11th Cir. 1996), held that 546(e) did not exempt the subject transfer from a trustee s avoidance powers under 544(b) where the only 546(e) institution involved was a mere intermediary. The Eleventh Circuit reasoned: Funds were deposited with the bank and when the bank received the shares from the selling shareholders, it sent funds to them in exchange. The bank never acquired a beneficial interest in either the funds or the shares. Id. The payments were viewed as having been made by Munford to shareholders, neither of which were 546(e) institutions. Moreover, although a 546(e) financial institution was involved in the transaction, that institution (an intermediary bank) was a mere conduit. Because the bank never had a beneficial interest in the funds or shares in question, it could not serve as a basis for exempting the transfer from avoidance. The Eleventh Circuit concluded that 546(e) did not bar the bankruptcy trustee from avoiding payments which the debtor corporation made to its shareholders in a leveraged buy-out. Id. at 606. Munford notes that its interpretation is consistent with other related provisions in the statutory scheme. For instance, under 550, a trustee may only avoid a transfer to a transferee. Because the bank in Munford never acquired a beneficial interest in the funds, it was not a transferee in the transaction. Id. at 61 0 (citing

11 6 In re Chase & Sanborn Corp., 848 F.2d 1196, 1200 (11th Cir.1988)) ( When banks receive money for the sole purpose of depositing it into a customer s account... the bank never has actual control of the funds and is not a 550 transferee. ). The Eleventh Circuit found that the shareholders were the only transferees of the funds in the case before it, and that 546(e) does not protect shareholders from the trustee s avoiding powers. Thus, 546(e) was inapplicable to the transfer because the only 546(e) financial institution involved in the transaction was a mere conduit for the transferred funds, not the transferor or the recipient. Id. ii. Various circuits, including the court below, erroneously reject Munford, holding that transfers through a mere intermediary are exempt under 546(e) from a trustee s avoidance powers Various federal circuits reject Munford, holding that funds passing through an intermediary fi nancial institution are subject to the 546(e) exemption. In In re Resorts International, Inc., 181 F.3d 505, 516 (3d Cir. 1999), the Third Circuit holds that the plain language of 546(e) exempts from a trustee s avoidance powers settlement payments made by a financial institution, regardless of whether the institution has a beneficial interest in the funds. The Third Circuit expressly rejects Munford on grounds that the statute s plain language purportedly does not support Munford s requirement that an entity obtain a beneficial interest in the funds. In In re QSI Holdings, Inc., 571 F.3d 545, 551 (6th Cir. 2009), the Sixth Circuit also rejects Munford on grounds

12 7 that the plain language purportedly does not require a financial institution to have a beneficial interest in the funds. The Sixth Circuit held the bank s intermediary role in the transfer was sufficient to satisfy the requirement that the transfer was made to a financial institution pursuant to 546(e). In Contemporary Industries Corp. v. Frost, 546 F.3d 981, (8th Cir. 2009), the Eighth Circuit holds that Munford cannot be squared with the plain language of 546(e). The Eighth Circuit explains: By its terms, 546(e) protects settlement payments made by or to a... financial institution, and does not expressly require that the financial institution obtain a beneficial interest in the funds. We have already decided the payments at issue are settlement payments, and First National, a bank, is a financial institution. In re Resorts, Int l, Inc., 181 F.3d at 515. Similarly, it is undisputed that First National received the payments from CIH and then distributed the payments to the Frosts in exchange for their stock. Thus, the settlement payments at issue were first made to, and then by, a financial institution. Id. Thus, the Eighth Circuit concludes that a literal reading of the statute indicates the passing of funds through an intermediary 546(e) entity is a transfer made by or to a financial institution. Id. In the decision below, the Second Circuit also erroneously rejects Munford and extends 546(e) to a

13 8 mere conduit. See In re Quebecor World (USA) Inc., 719 F.3d 94, (2d Cir. 2013). The court below holds the plain language of the statute, which refers to transfers made by or to (or for the benefit of) a financial institution, involves transfers that are either for the benefit of a fi nancial institution or to a fi nancial institution, but need not be both. The Second Circuit s reasoning fails for several reasons. First, the statute s plain language does not compel the interpretation advanced by the Second Circuit. The Second Circuit correctly notes that the statute refers to transfers made by or to (or for the benefit of) a financial institution. Pet. App (citing 546(e)). However, it wrongly interprets the statute to read: by or to or for the benefit of a financial institution. See id. ( we conclude that a transfer may be either for the benefit of a financial institution or to a financial institution, but need not be both ). Although punctuation is not dispositive, there is no basis for disregarding the parentheses here. In fact, the parenthetical phrase, or for the benefit of, is more naturally read as illustrative; that is, further defining to as for the benefit of. Second, even assuming the Second Circuit correctly interprets the parenthetical language, that still does not support the court s holding that 546(e) reaches a mere conduit. The Second Circuit s interpretation captures transfers made by, to or for the benefit of a fi nancial institution. It still should not apply to transfers passing through an intermediary. Such transfers are not made to the intermediary; they are made through it to another person or entity.

14 9 Third, the Second Circuit s reading is inconsistent with the statute as a whole. As Petitioner notes, this Court has cautioned against reading statutory language in isolation. Pet. at 27 (citations omitted). However, the Second Circuit and, save one cursory reference, the other circuits rejecting Munford, fail to consider the Code provisions authorizing the bankruptcy trustee s avoidance powers cross referenced in the statute, as well as other relevant Code provisions, including 11 U.S.C. 550 and 547. See Pet. at 27. First, it is inconsistent with the role of 547(b) in discouraging a race to the courthouse to dismember the debtor during his slide into bankruptcy, see Pet. at 31 (citing Union Bank v. Wolas, 502 U.S. 151, 161 (1991), and in promoting equality of distribution among creditors of the debtor, see Pet. at 31. Additionally, as noted in Munford, 550 and the case law interpreting it requires that a transferee must have dominion or control over the property at issue, not simply custody of the property. Pet. at 21. Indeed, these 550 cases have enshrined the mere conduit defense to a fraudulent transfer. The interpretation of 546(e) is inconsistent with the mere conduit concept, as the existence of a financial institution in the transfer chain would not provide the trustee with an additional defendant to pursue but would provide all of the subsequent non-bank defendants with a complete defense under 546(e) - even if securities were not transferred. This inconsistency must be resolved by this Court. Accordingly, interpreting 546(e) in its appropriate context demonstrates that the provision does not reach transfers of funds through mere conduits The Second Circuit s conclusion that a contrary reading of the statute would render the parenthetical language superfluous lacks merit. Requiring a transferor or transferee to have a beneficial interest in the funds is not inconsistent with that language.

15 10 iii. The above represents a direct and important conflict regarding interpretation of the bankruptcy code As illustrated above, federal circuits addressing the Question Presented are in clear conflict. 3 That conflict has significant implications: had this case proceeded in the Eleventh Circuit rather than in the Second Circuit, Petitioner would have recovered millions in payments to otherwise relatively junior noteholders who colluded to receive substantial payments on the eve of bankruptcy. See Pet. at 11. Such result should not turn on where the bankruptcy petition happens to be filed. Id. Moreover, for the reasons discussed below in Section II, the conflict has a significant impact on a trustee s exercise of his or her avoidance powers to achieve equity among creditors. Accordingly, the direct circuit confl ict on this issue of federal importance warrants granting the Petition to provide uniformity in the application of 546(e) defenses under the Bankruptcy Code. The essential facts in the underlying case are not in dispute, therefore, this case presents a good opportunity for the Court to decide this critical issue. 3. Lower courts in circuits that have not addressed the issue are also in conflict. See Pet. Br. at 18, n.4.

16 11 II. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE CASE RAISES AN IMPORTANT AND RECURRING QUESTION CONCERNING THE ABILITY OF TRUSTEES TO EFFECTIVELY ADMINISTER BANKRUPTCY CASES The Second Circuit s overbroad interpretation of 546(e), as well as the existing split among the federal circuits on this issue, has significant, unintended implications. First, it creates a lack of uniformity regarding the scope and application of a trustee s avoidance powers in performing critical administrative functions under the Bankruptcy Code. Second, those jurisdictions which follow the Second Circuit s reasoning unduly hamper a trustee s options. Under the Second Circuit s ruling, and in those jurisdictions that reject Munford, any payment through a financial institution would now have a 546(e) defense, notwithstanding that the financial institution did not have a beneficial interest in the transfer. The impact of that conclusion is far-reaching because a majority of transfers will involve some type of intermediary. The interpretation also fails to correctly consider the language and context of 546(e), including related provisions in the Code. This issue affects bankruptcy trustees in particular because debtors are unlikely to provide documentation regarding the transfer of cash and other non-traceable assets; accordingly, much of the avoidance action work of Bankruptcy Trustees is focused on transfers of funds through bank accounts as the account records are readily available. When the avoidance powers of trustees are curtailed in this manner it is the creditors of the debtor who suffer, as the purpose of the avoidance powers is to equalize the loss (within statutory parameters) between

17 12 the creditors so that a debtor may not preferentially or fraudulently mitigate the impact of bankruptcy on particular creditors. It is critical to the purpose and administration of the bankruptcy process that bankruptcy trustees maintain equality through use of their avoidance powers. In order to increase the pool of funds to distribute pro rata, and in the interest of equity, the Bankruptcy Code allows a trustee to recapture money which was preferentially, fraudulently, or otherwise voidably transferred. Section 546(e) limits that power for the specific purpose of minimizing the displacement caused in the commodities and securities markets in the event of a major bankruptcy affecting those industries. See App-11; see also Pet. at 25. It addresses the concern that if a firm is required to repay amounts received in settled securities transactions, it could have insufficient capital or liquidity to meet its current securities trading obligations, placing other market participants and securities markets at risk. App-11. Thus, 546(e) targets a specific concern. This purpose is not furthered by expanding the exemption to include intermediary financial institutions serving as mere pass-through entities for the disputed funds. As noted by the Petition, the Second Circuit s reading in effect immunizes from a trustee s avoidance power all non-cash transactions related to securities payments. Pet. at 25. Such is not the intent of 546(e). Congress created the Bankruptcy Code for the purpose of treating equally situated creditors equally. Cunningham v. Brown, 265 U.S. 1 (1924). As this Court has previously noted: equality is equity, and that is one of the policy cornerstones underlying the Bankruptcy

18 13 Code. Id. at 13. Bankruptcy trustees are charged with preserving and promoting the system s integrity by, among other things, effectively administering their bankruptcy cases. This includes the prudent exercise of avoidance powers, which are critical to a trustee s administrative function. Congress did not intend to undo this principle of equality when it enacted, or amended 546(e). Accordingly, this Court should grant the Petition for Writ of Certiorari to resolve the circuit conflict bearing on this critical issue. Respectfully Submitted, PAUL STEVEN SINGERMAN Counsel of Record ILYSE M. HOMER ISAAC M. MARCUSHAMER LARA E. O DONNELL BERGER SINGERMAN LLP 1450 Brickell Avenue, Ste Miami, FL singerman@bergersingerman.com Attorneys for Amicus Curiae

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