I

2005 ISDA Regional Member

Conference

Litigation Update
Oakley v. Animal
Enron v. Bear, Stearns
September 28,2005
Joshua D. Cohn, Partner
Allen 8 Overy

Oakley Inc. v. Animal Limited

English High Court, Chancery Division - Patents Court
February 17,2005

- On appeal

- Issue - Interplay of European Union directives and UK

legislative process

- Present Impact - uncertainty regarding propriety of

implementationof a variety of directives, including Collateral
Directive.

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In re Enron Corp. v. Bear, Stearns, 323

B.R. 857 (B.R. S.D.N.Y)
- Posture: Motion for Leave to File Appeal (interlocutory
appeal sought from denial of motion to dismiss)

- ISDA and Other Trade Associations as Amici

ERY

If a transaction is void under state fraudulent conveyance

law, can a transfer under it be protected by section 546(e)
(regarding securities contracts or forward contracts) or
546(g) (regarding swap agreements)?

- Not commonly used"?

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f

Bankruptcy Code Section 546(e)

"Notwithstanding sections 544, 545,547,548(a)(i)(B) and
548(b)of this title, the trustee may not avoid a transfer
that is a .... settlement payment ... made by or to a ...
forward contract merchant [or] stockbroker ... except
; under section 548(a)(l)(A)of this title".
Bankruptcy Code Section 741(8)
"[Slettlement payment means a [list of various types of
settlement payment1] a final settlement payment, or any
other similar payment commonly used in the securities

IS D A n p 9 ( s e c t i o n
101, tarorward cmtractr. is laigdy paratlei)

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