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ENRON CREDITORS RECOVERY CORP. v. ALFA, S.A.B. DE C.V.

Docket Nos. 09-5122-bk (L), 09-5142-bk (Con).

651 F.3d 329 (2011)

In re ENRON CREDITORS RECOVERY CORP., Appellant, v. ALFA, S.A.B. DE C.V., ING VP Balanced Portfolio, Inc., ING VP Bond Portfolio, Inc., Appellees.

United States Court of Appeals, Second Circuit.

Decided: June 28, 2011.

Attorney(s) appearing for the Case

Michael Schatzow ( Robert L. Wilkins,   Mitchell Y. Mirviss,   Colleen M. Mallon,   Richard L. Wasserman, on the brief), Venable LLP, Baltimore, MD, for Appellant Enron Creditors Recovery Corp.

Michael L. Cook ( Brian C. Tong, on the brief), Schulte Roth & Zabel LLP, New York, NY, for Appellee Alfa, S.A.B. de C.V.

Sabin Willett ( Mark M. Elliott,   Eric Heining, on the brief), Bingham McCutchen LLP, Boston, MA, for Appellees ING VP Balanced Portfolio, Inc., and ING VP Bond Portfolio, Inc.

Mark D. Cahn, Deputy General Counsel ( Morgan Bradylyons, Attorney, Jacob H. Stillman, Solicitor, Katharine B. Gresham, Assistant General Counsel), on the brief, Securities and Exchange Commission, Washington DC, for amicus curiae Securities and Exchange Commission.

Joshua D. Cohn ( Christopher J. Houpt ), on the brief, Mayer Brown LLP, New York, NY, for amicus curiae Securities Industry and Financial Markets Association.

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 prior 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...

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