Enron Creditors Recovery Corp. v. Alfa, S.A.B. De C.V.

651 F.3d 329, 65 Collier Bankr. Cas. 2d 1833, 2011 U.S. App. LEXIS 13177, 55 Bankr. Ct. Dec. (CRR) 12
CourtCourt of Appeals for the Second Circuit
DecidedJune 28, 2011
DocketDocket 09-5122-bk (L), 09-5142-bk (Con)
StatusPublished
Cited by69 cases

This text of 651 F.3d 329 (Enron Creditors Recovery Corp. v. Alfa, S.A.B. De C.V.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Enron Creditors Recovery Corp. v. Alfa, S.A.B. De C.V., 651 F.3d 329, 65 Collier Bankr. Cas. 2d 1833, 2011 U.S. App. LEXIS 13177, 55 Bankr. Ct. Dec. (CRR) 12 (2d Cir. 2011).

Opinions

Judge KOELTL dissents in a separate opinion.

JOHN M. WALKER, JR., Circuit Judge:

This appeal raises an issue of first impression in the courts of appeals: whether 11 U.S.C. § 546(e), which shields “settlement payments” from avoidance actions in bankruptcy, extends to an issuer’s payments to redeem its commercial paper pri- or to maturity. Enron Creditors Recovery Corp. (“Enron”)1 seeks to avoid and recover payments Enron made to redeem its commercial paper prior to maturity from Appellees Alfa, S.A.B. de C.V. (“Alfa”), ING VP Balanced Portfolio, Inc., and ING VP Bond Portfolio, Inc. (collectively, “ING”), whose notes were redeemed by Enron. Alfa and ING argue that § 546(e) protects these payments from avoidance.

The Bankruptcy Court for the Southern District of New York (Arthur J. Gonzalez, Bankruptcy Judge) concluded that § 546(e)’s safe harbor does not protect Enron’s payments from avoidance because they were made to retire debt, not to purchase securities, and because they were extraordinary. The District Court for the Southern District of New York (Colleen McMahon, Judge) held that Enron’s payments do fall within the safe harbor, reversed the Bankruptcy Court’s decision, and remanded with instructions to enter summary judgment in favor of Alfa and ING.

On appeal, Enron challenges the district court’s conclusion that the safe harbor protects Enron’s redemption payments whether or not they were made to retire debt or were unusual. Because we agree with the district court that Enron’s proposed exclusions from the reach of § 546(e) have no basis in the Bankruptcy Code, we AFFIRM its decision and order.

[331]*331BACKGROUND

After a series of events in the latter half of 2001, including the resignation of its CEO, Jeffery Skilling, its announcement of $600 million in third-quarter losses, the commencement of an SEC investigation into its practices, and the correction of four years’ worth of financial statements, Enron, a Houston-based energy company, collapsed. See, e.g., David S. Hilzenrath, Early Warnings of Trouble at Enron, Wash. Post, Dec. 30, 2001, at A10.

On December 2, 2001, Enron petitioned for Chapter 11 bankruptcy. This appeal arises out of Enron’s attempt to avoid and recover pre-petition payments it made to redeem, prior to maturity, commercial paper it had issued.

I. Facts

Between October 25, 2001 and November 6, 2001, Enron drew down on its $3 billion revolving lines of credit and paid out more than $1.1 billion to retire certain of its unsecured and uneertificated commercial paper prior to the paper’s maturity. Enron redeemed the commercial paper at the accrued par value, calculated as the price originally paid plus accrued interest. This price was considerably higher than the paper’s market value.

The offering memoranda that accompanied the issuance of the commercial paper provided that the “Notes are not redeemable or subject to voluntary prepayment by the Company prior to maturity.” This provision prohibited calls and puts: Enron could not force investors to surrender the notes and the investors could not require Enron to prepay them.

The Depository Trust Company (the “DTC”), a clearing agency, maintained bookkeeping entries that tracked ownership of Enron’s commercial paper. This is the customary tracking method in the industry. Every issuer of commercial paper has an issuing and paying agent (“IPA”) within the DTC to issue commercial paper and to pay at maturity or at an early redemption.

Three broker-dealers, J.P. Morgan, Goldman, Sachs & Co., and Lehman Brothers Commercial Paper, Inc., participated in Enron’s redemption. They received the commercial paper from the individual noteholders and paid them the redemption price. The mechanics of these transfers were as follows. The DTC debited the redemption price from each broker-dealer’s account and credited it to the noteholder’s DTC account. The broker-dealers then transferred the notes to the DTC account of Enron’s issuing and paying agent, Chase IPA, and received payment from Enron through the DTC. Immediately after the broker-dealer received payment, the commercial paper Enron redeemed was extinguished in the DTC system. Confirmations of these transactions referred to them as securities trades, termed them “purchases” from the holders, and referenced a “trade date” and “settlement date.”

Prior to these transactions, ING and Alfa owned Enron commercial paper in the amount, respectively, of $48,200,000 and $5,667,255. They both agreed to transfer their commercial paper to broker-dealer J.P. Morgan in exchange for the redemption price.

The parties dispute the circumstances and motives surrounding Enron’s redemption. Enron argues that it made the redemption payments under pressure from noteholders seeking to recover on their investments amidst rumors of Enron’s imminent implosion. Alfa and ING argue that Enron redeemed its commercial paper to “calm the irrational markets” and leave a favorable impression that would allow it to reenter the commercial paper market [332]*332once “bad publicity” about the company’s stability “had blown over.” They argue that the redemption was an economically rational move that allowed Enron to refinance its existing commercial paper debt with debt at a lower interest rate.

II. Procedural History

In November 2008, two years after Enron filed for bankruptcy, the reorganized entity brought adversary proceedings against approximately two hundred financial institutions, including appellees Alfa and ING, seeking to avoid and recover the redemption payments. It alleged that the payments were recoverable as (1) preferential transfers under 11 U.S.C. § 547(b), because they were made on account of an antecedent debt within ninety days prior to bankruptcy, and (2) constructively fraudulent transfers under 11 U.S.C. § 548(a)(1)(B), because the redemption price exceeded the commercial paper’s fair market value.

In 2004, the defendants in the adversary proceedings moved to dismiss Enron’s complaint for failure to state a claim. They argued that the redemption payments were “settlement payments” protected from avoidance under 11 U.S.C. § 546(e)’s safe harbor.

Section 546(e) provides, in relevant part, that

[n]otwithstanding sections ... 547 [and] 548(a)(1)(B) ... of this title, [which empower the trustee to avoid preferential and constructively fraudulent transfers,] the trustee may not avoid a transfer that is a ... settlement payment, as defined in section ... 741 of this title, made by or to (or for the benefit of) a ... stockbroker, financial institution, financial participant, or securities clearing agency ... that is made before the commencement of the case, except under section 548(a)(1)(A) of this title[, which empowers the trustee to avoid transfers made with actual intent to hinder, delay, or defraud creditors].

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651 F.3d 329, 65 Collier Bankr. Cas. 2d 1833, 2011 U.S. App. LEXIS 13177, 55 Bankr. Ct. Dec. (CRR) 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enron-creditors-recovery-corp-v-alfa-sab-de-cv-ca2-2011.