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Crypto Exchange Bankruptcies: Prepetition Crypto Withdrawals and Decentralized Finance (DeFi) Loan Repayments as Potential Avoidable Preferences (April 2024)

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This article also addresses potential affirmative defenses and safe harbors available to crypto customer and DeFi loan preference defendants.

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In an article for Practical Law written by Theresa Foudy, Andrew Kissner and Joseph Murphy, the authors discuss the issues around whether customer withdrawals of cryptocurrency and repayments or liquidations of decentralized finance (DeFi) loans in the lead-up to a bankruptcy filing might be deemed as preferential and avoided as preferences for the benefit of the estate. This article also addresses potential affirmative defenses and safe harbors available to crypto customer and DeFi loan preference defendants.“Beginning in 2022, many of the largest retail-facing cryptocurrency (crypto) platforms, including Celsius, Voyager, FTX, Genesis, and BlockFi, filed for Chapter 11 bankruptcy protection. Several of these cases were precipitated, at least in part, by "runs on the bank" in which retail customers withdrew substantial amounts of cryptocurrency from each platform.”“In light of these events, the Celsius, Voyager, FTX, Genesis, and BlockFi debtors (or their respective statutory committees, seeking to act as fiduciaries on behalf of the estates) have explored avenues for maximizing value, including by considering whether customer withdrawals and repayments or liquidations of DeFi loans in the lead-up to the bankruptcy filings might be deemed as preferential and avoided for the benefit of the estate. Indeed, various crypto exchange debtors have engaged in litigation related to the recovery of such funds, and/or negotiated settlement agreements with the recipients of potentially avoidable transfers. The Chapter 11 plans for several crypto debtors also provide for the establishment of a liquidating trust or similar structure to pursue, among other things, avoidance actions (including preference actions) on behalf of the debtors' estates.”Read the <a href="https://url.us.m.mimecastprotect.com/s/FXpECPN5gGSKzqJjGIzwc8r?domain=us.practicallaw.thomsonreuters.com">full article</a>.

Crypto Exchange Bankruptcies: Prepetition Crypto Withdrawals and Decentralized Finance (DeFi) Loan Repayments as Potential Avoidable Preferences

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Theresa Foudy serves as co-chair of the firm’s Distressed Real Estate Group and has over 25 years of experience representing clients in a wide range of complex commercial litigation, including class-action securities fraud, accounting fraud, white-collar criminal matters, and general commercial disputes. Theresa also has a particular focus in bankruptcy litigation and she has represented Chapter 11 debtors, creditors’ committees, indenture trustees, secured and unsecured creditors, private equity sponsors, independent directors, and distressed investors in all stages of bankruptcy.Throughout her career, Theresa has worked on many of the United States’ largest and most complex bankruptcy cases, including serving as lead trial counsel in several of the most prominent bankruptcy matters of the last decade. She has advised clients on all types of bankruptcy-related disputes, including suits by or against bankrupt companies, investigations into what led to bankruptcy filings, avoidance actions, and litigation of reorganization plans.Theresa’s representative high-profile matters include: serving as lead trial counsel for wholly owned subsidiaries of a multinational commodity trading and mining company as defendants in a four-day bench trial concerning the rejection of a lease to a power plant in an adversary proceeding before the U.S. Bankruptcy Court for the Southern District of Texas; serving as lead trial counsel for defendant directors in a 15-day bench trial on a creditors’ committee’s motion for standing to assert claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty in connection with the directors’ approval of a merger transaction and, after prevailing in the U.S. Bankruptcy Court for the Southern District of New York, handling the successful defense of subsequent appeals by the creditors’ committee to the District Court and U.S. Court of Appeals for the Second Circuit; and defending a private equity sponsor against clawback claims seeking over $350 million in dividends and management fees.Theresa also has extensive experience in general commercial, appellate, and criminal litigation. She has represented clients in connection with contract disputes, commercial torts, and accounting fraud and malpractice suits in state and federal courts, as well as in arbitration. In addition, prior to entering private practice, she argued over 100 appeals to New York Appellate Division First Department, New York Court of Appeals, and Second Circuit Court of Appeals as a member of the Appeals Bureau for the New York County District Attorney’s Office and the Office’s Civil Litigation Coordinator.Theresa’s exceptional litigation skills, widely recognized by The Legal 500, Best Lawyers and Super Lawyers, are complemented by her role on the Thomson Reuters Practical Law Bankruptcy Advisory Board.<h4>Representative Experience</h4><h5>Bankruptcy Litigation</h5><ul><li>In re Thrasio Holdings, Inc., et al. (Bankr. D.N.J.) Counsel to the official committee of unsecured creditors of Thrasio Holdings, Inc. and its affiliated debtors in their chapter 11 cases. Thrasio is an acquisition entrepreneurship company that focuses on acquiring and scaling businesses within the Amazon third-party seller ecosystem.</li><li>Toys “R” Us Litigation Trust v. UPS Supply Chain Solutions, Inc. (Bankr. E.D. Virginia). Successfully obtained summary judgment for the defendant dismissing a $12 million, plus interest, preference claim brought by plaintiff litigation trustee.</li><li>In re Clovis Oncology, Inc., et al. (Bankr. Del.) Counsel to the official committee of unsecured creditors of Clovis Oncology, Inc., and its affiliated debtors in their chapter 11 cases. Clovis is a biopharmaceutical company focused on acquiring, developing, and commercializing cancer treatments in the United States and abroad. Clovis filed for chapter 11 to implement a sale of their assets pursuant to section 363 of the Bankruptcy Code.</li><li>In re GVS Portfolio I B, LLC (Bankr. D. Del.). As counsel to a secured junior mezzanine lender, obtained dismissal of a Chapter 11 case filed by a mezzanine borrower as a bad faith filing following an evidentiary hearing.</li><li>In re Great Value Storage, et al. (Bankr. N.D. Tex.). As counsel to secured creditors holding over $300 million in debt in the Chapter 11 cases of a company with a portfolio of 64 self-storage facilities, prosecuted a numerous contested matters, including a motion to appoint a Chapter 11 trustee.</li><li>In re Valaris plc, et al. (Bankr. S.D. Tex.). Counsel to the official committee of unsecured creditors of Valaris plc and its affiliated debtors in their Chapter 11 cases. Valaris is a leading provider of offshore drilling services to the international oil and gas industry. It currently operates the industry’s largest modern offshore drilling fleet of 67 rigs, and maintains drilling operations in nearly every major offshore market spanning 24 countries. Valaris’s customers include many of the leading national and international oil companies, in addition to numerous local and independent offshore exploration and production companies. The company listed total assets of approximately $13 billion and total debts of approximately $7.85 billion in its first day filings.</li><li>Counsel to an ad hoc group of holders of bonds issued and/or guaranteed by the Commonwealth of Puerto Rico (“constitutional debt”) in connection with the first restructuring proceeding under the newly enacted Puerto Rico Oversight, Management, and Economic Stability Act. Working in coordination with other holders of constitutional debt, the ad hoc group has engaged in targeted litigation and efforts to negotiate a plan for the Commonwealth’s restructuring, while simultaneously defending attempts to invalidate more than $6 billion of the Commonwealth’s $18 billion of outstanding constitutional debt.</li><li>Lead trial counsel for defendant directors in 15-day bench trial on motion of the official committee of unsecured creditors for standing to assert claims against directors for breach of fiduciary duty and aiding and abetting breach of fiduciary duty in connection with their approval of a merger transaction. After prevailing in the U.S. Bankruptcy Court for the Southern District of New York, also handled successful defense of subsequent appeals by the creditors' committee to the District Court and U.S. Court of Appeals for the Second Circuit.</li><li>Conflicts counsel for plaintiff Chapter 11 debtor, a leading provider of residential mortgages. Participated in all aspects of litigation and trial of adversary proceeding against junior secured noteholders.</li><li>Lead trial counsel for a creditor, a state-owned oil and natural gas company, in an evidentiary hearing in connection with a motion to dismiss bankruptcy case pending in the U.S. Bankruptcy Court for the Southern District of Florida.</li><li>Lead trial counsel for defendant, an alternative investment manager, in a 16-day bench trial of creditors' committee complaint seeking equitable subordination, re-characterization, and disallowance of transferee noteholders' claims in adversary proceeding pending in Chapter 11 case in the U.S. Bankruptcy Court for the Southern District of New York.</li><li>Conflicts counsel for an official committee of unsecured creditors in contested evidentiary hearing on debtors' motion to extend exclusivity in Chapter 11 cases pending in the U.S. Bankruptcy Court for the Southern District of New York.</li><li>Represented co-chair of an official committee of unsecured creditors for a global paper and packaging company during a contested confirmation hearing, in which equity holders challenged the valuation of a bankruptcy estate in cases pending in the U.S. Bankruptcy Court for the District of Delaware.</li><li>Argued before the U.S. Bankruptcy Court for the Southern District of New York on behalf of plaintiff, a global financial services firm, in defense of summary judgment motion brought by defendant, a financial services multinational, seeking dismissal of claims for actual fraudulent conveyance arising from the client issuing a guarantee to defendant of billions of dollars of intraday exposure days before filing for bankruptcy.</li><li>Briefed and argued, on behalf of plaintiff, an institutional lender, as a trustee for the holders of $250 million in senior secured notes, oppositions to motion to dismiss complaint and amended complaint alleging breach of contract claims against junior noteholders for violations of an intercreditor agreement in Chapter 11 cases pending in the U.S. Bankruptcy Court for the Southern District of New York.</li><li>Briefed and argued a successful motion to dismiss, on behalf of a global supplier of automotive seating systems, a $264 million patent infringement claim brought in Chapter 11 cases pending in the U.S. Bankruptcy Court for the Southern District of New York.</li><li>Briefed and argued a successful motion to dismiss, on behalf of provider of liquidation services, claims for equitable subordination or re-characterization of debt brought by an official committee of unsecured creditors in the U.S. Bankruptcy Court for the Southern District of New York.</li><li>Obtained dismissal, on behalf of an accounting firm, of a third-party complaint brought by an investment bank seeking a contribution and indemnification from a client in connection with claims for fraud brought by a bankruptcy estate in the U.S. Bankruptcy Court for the Southern District of New York.</li></ul><h5>Commercial Litigation</h5><ul><li>Lead trial counsel for defendants, wholly owned subsidiaries of a multinational commodity trading and mining company, in a four-day bench trial seeking declaratory judgments as to numerous property rights and contractual damages associated with the rejection of a lease to a power plant in an adversary proceeding before the U.S. Bankruptcy Court for the Southern District of Texas.</li><li>Lead trial counsel for plaintiff in an ICC international arbitration against a global energy company that provides equipment, services, and technology in a dispute over breach of equipment supply and construction contract.</li><li>Won a jury verdict for plaintiff, the exclusive distributor of brand-name clothing products in Latin America, suing for breach of contract for premature termination of a license agreement.</li><li>Brought successful motion to dismiss in the U.S. District Court for the Southern District of New York, on behalf of a Panamanian financial institution, of claims alleging breach of fiduciary duty and conspiracy arising from sale of an investment company.</li><li>Prevailed in motions for summary judgment and sanctions in defense of $60 million claim for fraudulent inducement and breach of contract against provider of liquidation services in the U.S. District Court for the District of Massachusetts and successfully defeated appeals from same provider before the First Circuit Court of Appeals.</li><li>Represented an accounting manager at a “Big 4” accounting firm in connection with allegations relating to the preservation of work papers in a proceeding brought by the Public Company Accounting Oversight Board (PCAOB).</li><li>Prevailed in a motion for summary judgment defeating an accounting malpractice claim brought against a “Big 4” accounting firm.</li><li>Won motion to dismiss a state court claim while representing a “Big 4” accounting firm against allegations of malpractice in providing tax advice.</li></ul>

Theresa A. Foudy

Partner

Andrew’s primary practice is advising clients with respect to novel and complex insolvency issues, with a particular focus on cross-border and governmental restructurings. He has represented debtors, ad hoc groups, official committees, and individual investors in large chapter 11 and chapter 15 filings. He is currently a member of the International Insolvency Institute’s NextGen Leadership Program.Andrew also has an active pro bono practice, including advising numerous tenants in the chapter 11 bankruptcies of their landlords, and has represented ICE detainees in connection with asylum proceedings. He is recognized for his dedication to pro bono and recently received the New York State Bar Association President’s Pro Bono Service Award for the First Judicial District, as well as Morrison Foerster’s Kathi Pugh Pro Bono Service Award.Andrew graduated magna cum laude from Brooklyn Law School, where he served as Articles Editor on the Brooklyn Law Review. As a law student, Andrew worked as a judicial intern to the Honorable Jane Restani, Senior Judge for the United States Court of International Trade.Andrew received an LL.M. in International and European Business Law at the Universidad Pontificia de Comillas in Madrid and graduated magna cum laude from the University at Albany, earning a B.A. in English and Spanish. He is also highly proficient in Spanish.

Andrew Kissner

Of Counsel

Joseph Murphy is an associate in Morrison Foerster’s Business Restructuring + Insolvency Group in the New York office.Joseph has experience representing and advising debtors, creditors, trustees, and other parties-in-interest in complex chapter 7, chapter 11, and chapter 15 bankruptcy proceedings and corporate restructurings.Prior to joining Morrison Foerster, Joseph worked as an associate at a boutique New York bankruptcy firm.Joseph graduated cum laude from Brooklyn Law School. As a law student, he served as notes editor for the Brooklyn Law Review and was awarded the American Bankruptcy Law Journal student prize.

Joseph Murphy

Associate

Business Restructuring + Insolvency