Petition of the day
on Nov 4, 2016 at 11:12 pm
The petition of the day is:
Issues: (1) Whether the the U.S. Court of Appeals for the 2nd Circuit correctly held—contrary to several other courts of appeals—that the presumption against federal preemption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held—following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits—that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held—contrary to this court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the Code—that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly preempt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).
