Wyle v. Howard, Weil, Labouisse, Friedrichs Inc. (In re Taft)

176 B.R. 895, 32 Oil & Gas Rep. 1727, 32 Collier Bankr. Cas. 2d 1727, 1995 Bankr. LEXIS 45, 26 Bankr. Ct. Dec. (CRR) 665
CourtUnited States Bankruptcy Court, N.D. California
DecidedJanuary 19, 1995
DocketBankruptcy No. 91-3-1077-TC; Adv. No. 93-3-121-TC
StatusPublished
Cited by4 cases

This text of 176 B.R. 895 (Wyle v. Howard, Weil, Labouisse, Friedrichs Inc. (In re Taft)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wyle v. Howard, Weil, Labouisse, Friedrichs Inc. (In re Taft), 176 B.R. 895, 32 Oil & Gas Rep. 1727, 32 Collier Bankr. Cas. 2d 1727, 1995 Bankr. LEXIS 45, 26 Bankr. Ct. Dec. (CRR) 665 (Cal. 1995).

Opinion

OPINION

THOMAS E. CARLSON, Chief Judge.

The principal question in this ease is whether section 546(e) of the Bankruptcy Code bars a trustee from recovering as a fraudulent conveyance transfers made by a stockbroker pursuant to a reverse repurchase agreement used to facilitate a leveraged buy out. I conclude that there are no genuine issues of material fact and that section 546(e) bars trustee’s action, and therefore grant summary judgment for defendant.

FACTS

The material facts are not in dispute. On December 30, 1987, MaxPharma, Inc. paid Connecticut General Corporation (CIGNA) $500,0Q0 for an option entitling it to purchase stock of Debtor Hamilton Taft & Company (Debtor) from CIGNA for $4,100,000. Max-Pharma could exercise the option only through January 29, 1988. The $500,000 option price was applicable to the purchase price, but was otherwise non-refundable. MaxPharma was unable to find a lender willing to arrange financing through a “stock loan,” whereby Debtor’s stock would be used as collateral to secure the loan. Defendant Howard, Weil, Labouisse, Friedrichs Incorporated (Defendant) informed MaxPharma that it did not make “stock loans,” but could lend money with a treasury bill as security by performing a reverse repurchase transaction.

On January 28, 1988, Debtor wired $5.0 million to Defendant. On January 29, 1988, Defendant used approximately $4.9 million of those funds to purchase for Debtor a 90-day T-Bill having a face value of $5.0 million. On the same day, Debtor sold the T-Bill back to Defendant for $4.1 million, subject to a reverse repurchase agreement, under which Debtor agreed to repurchase the T-Bill in 90 days for the sale price plus interest.

What happened to the $4.1 million is contested by the parties. Debtor’s chapter 11 trustee (Trustee) contends that the $4.1 million was transferred directly to MaxPharma immediately upon sale of the T-Bill. Defendant claims that it credited Debtor’s account for $4.1 million, and that those funds were subsequently wired to MaxPharma. For the purpose of the present motion, I accept Trustee’s version of the facts. It is undisputed that Debtor transferred the funds to Max-Pharma at the request of Debtor and that MaxPharma used $3.6 million to purchase Debtor’s stock from CIGNA.

When the 90-day repurchase agreement matured, Debtor rolled over its obligation into new T-Bills and later into T-Notes. In January 1989, Debtor directed Defendant to sell the T-Notes and apply the proceeds to satisfy Debtor’s obligation under the reverse repurchase agreement.

Creditors filed an involuntary chapter 11 petition against Debtor on March 20, 1992. Trustee was appointed on March 26, 1992. An order4 for relief was entered on May 31, 1992. Trustee filed the present action on March 26, 1993. Trustee contends that the transaction involving Debtor, Defendant, and MaxPharma was in substance a leveraged buy out (LBO), in which MaxPharma used Debtor’s funds to purchase CIGNA’s stock in Debtor. Trustee further contends that the transaction rendered Debtor insolvent and that the LBO therefore constituted a fraudulent conveyance. In the present action, Trustee seeks to recover, pursuant to California Civil Code sections 3439.04 and 3439.05 and Bankruptcy Code section 544, the value of the $5.0 million T-Bill transferred from Debtor to Defendant on January 29, 1988, or the $4.1 million proceeds of the sale of that T-Bill that were transferred from Defendant to MaxPharma the same [898]*898day.1 Trustee and Defendant filed cross motions for summary judgment.

DISCUSSION

I

Standard for Summary Judgment

“Summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Clipper Express v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1250 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).

II

Section 546(e) Defense

Defendant contends that Trustee’s action is barred under section 546(e) of the Bankruptcy Code. That section provides:

[ notwithstanding sections 544, 545, 547, 548(a)(2), and 548(b) of this title, the trustee may not avoid a transfer that is a margin payment, as defined in section 101(34), 741(5), or 761(15) of this title, or settlement payment, as defined in section 101(35) or 741(8) of this title, made by or to a commodity broker, forward contract merchant, stockbroker, financial institution, or securities clearing agency, that is made before the commencement of the case, except under section 548(a)(1) of this title.

11 U.S.C. § 546(e). Congress enacted section 546(e) “to protect the nation’s financial markets from the instability caused by the reversal of settled securities transactions.” Kaiser Steel Resources, Inc. v. Jacobs, 110 B.R. 514, 522 (D.Colo.1990), aff'd, 913 F.2d 846 (10th Cir.1990) (citation omitted). Trustee does not contest many of the elements of the section 546(e) defense: that Defendant is a stockbroker, that the T-Bill transferred was a security, and that the present action is brought under section 544. Trustee contends that section 546(e) does not apply, however, because: (i) the transaction was not a true repurchase agreement (Repo), (ii) the transfer of the T-Bill to Defendant was not a “settlement payment,” (iii) the present transaction is governed by section 546(f), and (iv) section 546(e) should not be applied to LB Os.

A. Whether Transaction a True Repo

Defendant characterizes its transaction with Debtor as a reverse repurchase agreement (Reverse Repo). The Ninth Circuit has held that Repos and Reverse Repos are securities transactions covered by section 546(e). In re Comark, 971 F.2d 322, 325 (9th Cir.1992) (Comark J); In re Comark, 145 B.R. 47, 52-53 (Bankr. 9th Cir.1992) (Comark II). The Ninth Circuit has described the characteristics of Repos and Reverse Repos as follows.

In a Repo arrangement, the dealer sells specified securities to a purchaser, but also agrees to repurchase the securities later at the original price, plus an agreed upon additional amount usually representing interest on the original purchase price. A Reverse Repo basically is the reverse: the dealer buys securities and agrees to resell the securities to the seller in the future. Reverse Repos can function as a loan. The seller receives cash for the securities, but must repurchase the securities in the future at the same price. Thus, the securities “sold” to the dealer can be viewed as being collateral for a loan.

Comark I, 971 F.2d at 323 (footnote omitted). Accord 11 U.S.C. § 101(47).

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176 B.R. 895, 32 Oil & Gas Rep. 1727, 32 Collier Bankr. Cas. 2d 1727, 1995 Bankr. LEXIS 45, 26 Bankr. Ct. Dec. (CRR) 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wyle-v-howard-weil-labouisse-friedrichs-inc-in-re-taft-canb-1995.