Business Restructuring Review

Second Circuit Rules that Bankruptcy Code’s Fraudulent Transfer Recovery Provisions Can Reach Foreign Transferees

The ability of a bankruptcy trustee to avoid fraudulent or preferential transfers is a fundamental part of U.S. bankruptcy law. However, when an otherwise avoidable transfer by a U.S. entity takes place outside the U.S. to a non-U.S. transferee—as is increasingly common in the global economy—courts disagree as to whether the Bankruptcy Code’s avoidance provisions apply extraterritorially to avoid the transfer and recover the transferred assets. Several bankruptcy and appellate courts have addressed this issue in recent years, with inconsistent results.

The U.S. Court of Appeals for the Second Circuit recently had an opportunity to weigh in on this question in In re Picard, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC, 917 F.3d 85 (2d Cir. 2019) ("Madoff"). A three-judge panel of the Second Circuit vacated a bankruptcy court order dismissing a trustee’s litigation against various non-U.S. defendants to recover payments by a U.S. debtor that were allegedly avoidable as intentionally fraudulent transfers.

The bankruptcy court had ruled that the claims against these subsequent foreign transferees must be dismissed because section 550(a)(2) of the Bankruptcy Code, which provides for the recovery of avoided fraudulent transfers from subsequent transferees, does not apply extraterritorially, and because principles of international comity limited the provision’s scope. In vacating the dismissal, the Second Circuit held that neither the "presumption against extraterritoriality" nor the doctrine of comity barred recovery because: (i) section 550(a)(2) works in tandem with section 548, which "focuses on the debtor’s initial transfer of property"; (ii) the initial transfer occurred within the U.S., meaning that the case involved domestic, rather than foreign, application of section 550(a); and (iii) comity did not warrant dismissal of the recovery actions because the interest of the U.S. in applying the Bankruptcy Code’s avoidance and recovery provisions "outweighs the interest of any foreign state."

Notably, however, because the Second Circuit found that the case involved a domestic application of section 550(a), it "express[ed] no opinion on whether § 550(a) clearly indicates its extraterritorial application."

On May 23, 2019, the Second Circuit stayed the effectiveness of its ruling pending a decision by the U.S. Supreme Court on the foreign transferees’ petition for a writ of certiorari.

The Presumption Against Extraterritoriality

"It is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’" EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). This "presumption against extraterritoriality" is a judicially developed rule of statutory construction whereby federal law is presumed not to apply to conduct or property outside the United States "unless a contrary intent appears." Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255 (2010). Contrary intent is shown through "clear evidence," in either the statutory text or the "legislative purpose underlying it." Smith v. United States, 507 U.S. 197, 204 (1993). However, a law need not explicitly state that "this law applies abroad" to have extraterritorial effect, and context is relevant to infer the statute’s meaning. Morrison, 561 U.S. at 255.

In Morrison and RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (2016), the Supreme Court outlined a two-step approach to determine whether the presumption against extraterritoriality forecloses a claim. First, the court examines "whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially." Nabisco, 136 S. Ct. at 2101; accord Morrison, 561 U.S. at 255. If the conclusion is that the presumption has been rebutted, the inquiry ends.

If the presumption has not been rebutted, the court must determine whether the case involves a domestic application of the statute by examining its "focus." If the conduct relevant to the statute’s focus occurred in the U.S., "the case involves a permissible domestic application even if other conduct occurred abroad." Nabisco, 136 S. Ct. at 2101; accord Morrison, 561 U.S. at 266–67. However, if the conduct relevant to the focus of the statute did not occur in the U.S., "the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory." Id.; accord Societe Generale plc v. Maxwell Commc’n Corp. plc (In re Maxwell Commc’n Corp. plc), 186 B.R. 807, 816 (S.D.N.Y. 1995) ("Maxwell I"), aff’d on other grounds, 93 F.3d 1036 (2d Cir. 1996) ("Maxwell II").

Most courts have adopted a flexible approach in determining whether a transaction occurred in the U.S. or was extraterritorial for this purpose. Many apply a "center of gravity" test, whereby the court examines the facts of the case to ascertain whether they have a center of gravity outside the U.S. See, e.g., French v. Liebmann (In re French), 440 F.3d 145, 149 (4th Cir. 2006), cert. denied, 549 U.S. 815 (2006); In re Florsheim Group Inc., 336 B.R. 126, 130 (Bankr. N.D. Ill. 2005). This analysis may involve consideration of "all component events of the transfer[]," Maxwell I, 186 B.R. at 816, such as "whether the participants, acts, targets, and effects involved in the transaction at issue are primarily foreign or primarily domestic." French, 440 F.3d at 150.

Extraterritorial Operation of U.S. Bankruptcy Law

In certain respects, U.S. bankruptcy law has explicitly applied extraterritorially for nearly 70 years. In 1952, due to confusion about the scope of a debtor’s property to be administered by a bankruptcy trustee under the Bankruptcy Act of 1898, Congress inserted the phrase "wherever located" into section 70a of the act "to make clear that a trustee in bankruptcy is vested with the title of the bankrupt in property which is located without, as well as within, the United States." H.R. Rep. No. 82-2320, at 15 (1952), reprinted in 1952 U.S.C.C.A.N. 1960, 1976; see also Pub. L. No. 82-456, 66 Stat. 420 (July 7, 1952). This language was preserved in section 541(a) of the Bankruptcy Code (enacted in 1978), which states that the bankruptcy estate includes the debtor’s property "wherever located and by whomever held." Section 541(a) provides further that such property includes various "interests" of the debtor in property. Similarly, 28 U.S.C. § 1334(e) gives federal district courts—and, by referral pursuant to 28 U.S.C. § 157(a), bankruptcy courts within each district—exclusive jurisdiction of all property of the debtor and its estate, "wherever located."

Many courts have concluded that, because the automatic stay imposed by section 362(a) of the Bankruptcy Code expressly prohibits, among other things, acts to obtain possession of "property of the estate," the stay bars creditor collection efforts with respect to estate property located both within and outside the U.S. See, e.g., Milbank v. Philips Lighting Elecs. N. Am. (In re Elcoteq, Inc.), 521 B.R. 189 (Bankr. N.D. Tex. 2014); In re Nakash, 190 B.R. 763 (Bankr. S.D.N.Y. 1996).

However, the provisions of the Bankruptcy Code permitting avoidance and recovery of preferential or fraudulent transfers—i.e., sections 544, 547, 548, and 550—do not expressly refer to "property of the estate" as that term is defined in section 541 or even to section 541 itself. Instead, section 544(a) permits the trustee to avoid certain transfers of "property of the debtor"; sections 544(b)(1), 547(b) and 548(a)(1) provide for the avoidance of "an interest of the debtor in property"; and section 550 permits the trustee to recover "the property transferred" or its value from the transferee.

Furthermore, some courts, noting that section 541(a)(3) of the Bankruptcy Code provides that any "interest in property that the trustee recovers under section . . . 550" is part of the estate, have concluded that fraudulently or preferentially transferred property is not estate property unless and until it is recovered by the trustee. See, e.g., FDIC v. Hirsch (In re Colonial Realty Co.), 980 F.2d 125 (2d Cir. 1992) (if property that has been fraudulently transferred is included in "property of the estate" under section 541(a)(1), section 541(a)(3) is rendered meaningless with respect to property recovered pursuant to fraudulent transfer actions); accord Rajala v. Gardner, 709 F.3d 1031 (10th Cir. 2013). But see Am. Nat’l Bank of Austin v. MortgageAmerica Corp. (In re MortgageAmerica Corp.), 714 F.2d 1266, 1277 (5th Cir. 1983) ("[p]roperty fraudulently conveyed and recoverable under the Texas Fraudulent Transfers Act remains, despite the purported transfer, property of the estate within the meaning of section 541(a)(1)").

Prior Court Rulings on the Extraterritorial Application of Avoidance Provisions

Some courts have concluded that the Bankruptcy Code’s avoidance provisions do not apply extraterritorially. See, e.g., Maxwell I, 186 B.R. at 816 (Congress did not clearly express its intention, in statutory language or elsewhere, for section 547 to empower a trustee to avoid foreign preferential transfers); In re CIL Limited, 582 B.R. 46 (Bankr. S.D.N.Y. 2018) (the Bankruptcy Code’s avoidance provisions do not apply extraterritorially because "[n]othing in the language of sections 544, 548 and 550 of the Bankruptcy Code suggests that Congress intended those provisions to apply to foreign transfers"), amended on reconsideration, 2018 WL 3031094 (Bankr. S.D.N.Y. June 15, 2018); Spizz v. Goldfarb Seligman & Co. (In re Ampal-Am. Israel Corp.), 562 B.R. 601 (Bankr. S.D.N.Y. 2017) (the avoidance provisions of the Bankruptcy Code, including section 547(b), do not apply extraterritorially: "Property transferred to a third party prior to bankruptcy . . . is neither property of the estate nor property of the debtor at the time the bankruptcy case is commenced, the only two categories of property mentioned in Bankruptcy Code § 541(a)(1)."); Barclay v. Swiss Fin. Corp. Ltd. (In re Bankr. Estate of Midland Euro Exch. Inc.), 347 B.R. 708, 719 (Bankr. C.D. Cal. 2006) (noting that the court could "find no basis for holding that Congress intended the trustee’s avoiding powers to apply extraterritorially").

Other courts have reached the opposite conclusion. See, e.g., French, 440 F.3d at 149 ("Congress made manifest its intent that § 548 apply to all property that, absent a prepetition transfer, would have been property of the estate, wherever that property is located"); In re FAH Liquidating Corp., 572 B.R. 117 (Bankr. D. Del. 2017) (ruling that the presumption against extraterritoriality with respect to section 548 was overcome because Congress intended the provision to reach foreign transfers), leave to appeal denied, 2018 WL 2793944 (D. Del. June 11, 2018); Weisfelner v. Blavatnik (In re Lyondell), 543 B.R. 127 (Bankr. S.D.N.Y. 2016) (Congress could not have intended to exclude extraterritorial transfers from avoidance under section 548 while explicitly defining "property of the bankruptcy estate" under section 541 to include all of the debtor’s property "wherever located and by whomever held").

Finally, some courts, finding that a challenged transfer was domestic rather than foreign, have declined to address (other than in dicta) whether the Bankruptcy Code’s avoidance and recovery provisions apply extraterritorially. See, e.g., In Official Comm. of Unsecured Creditors of Arcapita Bank B.S.C.(C) v. Bahrain Islamic Bank (In re Arcapita Bank B.S.C.(C)), 575 B.R. 229 (Bankr. S.D.N.Y. 2017); Picard v. Bureau of Labor Ins. (In re Bernard L. Madoff Inv. Sec. LLC), 480 B.R. 501, 527 (Bankr. S.D.N.Y. 2012) (because the initial transfers of the debtor’s assets occurred in the U.S., the trustee was not seeking extraterritorial application of section 550, but noting in dicta that "Congress demonstrated its clear intent for the extraterritorial application of Section 550 through interweaving terminology and cross-references to relevant Code provisions").


Even if a U.S. court determines that the Bankruptcy Code’s avoidance provisions apply extraterritorially, the court may conclude that they should not be deployed under principles of international comity.

"Comity" is "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Hilton v. Guyot, 159 U.S. 113, 164 (1895). International comity has been interpreted to include two distinct doctrines: (i) "legislative," or "prescriptive," comity; and (ii) "adjudicative comity." Maxwell II, 93 F.3d at 1047.

The former "shorten[s] the reach of a statute"—one nation will normally "refrain from prescribing laws that govern activities connected with another state when the exercise of such jurisdiction is unreasonable." Arcapita, 575 B.R. at 237.

"Adjudicative comity," or "comity among courts," is an act of deference whereby the court of one nation declines to exercise jurisdiction in a case that is properly adjudicated in a foreign court. Id. at 238. U.S. courts generally extend comity whenever a foreign court has proper jurisdiction and "enforcement does not prejudice the rights of United States citizens or violate domestic public policy." CT Inv. Mgmt. Co., LLC v. Cozumel Caribe, S.A. de C.V. (In re Cozumel Caribe, S.A. de C.V.), 482 B.R. 96, 114 (Bankr. S.D.N.Y. 2012).

Because a foreign nation’s interest in the equitable and orderly distribution of a foreign debtor’s assets is an interest deserving respect and deference, U.S. courts generally defer to foreign bankruptcy proceedings and decline to adjudicate creditor claims that are the subject of such proceedings. See In re Int’l Banking Corp. B.S.C., 439 B.R. 614, 624 (Bankr. S.D.N.Y. 2010) (citing cases).

In this context, deference to a foreign proceeding is warranted "so long as the foreign proceedings are procedurally fair and . . . do not contravene the laws or public policy of the United States." Cozumel Caribe, 482 B.R. at 114; accord Finanz AG Zurich v. Banco Economico S.A., 192 F.3d 240, 249 (2d Cir. 1999) (discussing factors to be considered in assessing procedural fairness).

The Second Circuit considered both of these issues in Madoff.


In December 2008, the Securities Investment Protection Corporation commenced a proceeding under the Securities Investor Protection Act ("SIPA") to effect an orderly liquidation of Bernard L. Madoff Investment Securities LLC ("BLMI"), the investment vehicle controlled by convicted Ponzi scheme operator Bernard L. Madoff. The bankruptcy court presides over a SIPA case, and the case proceeds very much like a chapter 7 liquidation, with certain exceptions.

SIPA expressly provides that to the extent consistent with its provisions, "a liquidation proceeding shall be conducted in accordance with, and as though it were being conducted under[,] chapters 1, 3, and 5 and subchapters I and II of chapter 7 of title 11." 15 U.S.C. § 78fff(b). This means, among other things, that a SIPA trustee has substantially all of the powers of a bankruptcy trustee, including the avoidance powers.

As part of the Madoff Ponzi scheme, BLMI made payments to various domestic and offshore "feeder funds," which then made payments to their investors. BLMI’s SIPA trustee, alleging that the payments to the feeder funds were avoidable under section 548(a)(1)(A) as intentionally fraudulent transfers, commenced litigation beginning in 2008 against hundreds of investors as subsequent transferees of the feeder funds, seeking to recover the payments under section 550(a)(2). That provision authorizes a trustee to recover fraudulently transferred property from subsequent transferees. In many cases, the initial transferee was a foreign feeder fund and the subsequent transferee was also a foreign entity. In addition, some of the foreign feeder funds were debtors in foreign liquidation proceedings.

The foreign investor transferees moved to dismiss the complaint, arguing that section 550 does not apply extraterritorially. After withdrawing the reference of the litigation to the bankruptcy court, the U.S. District Court for the Southern District of New York ruled in favor of the foreign investors, but remanded the case to the bankruptcy court rather than dismissing the complaint. See S.I.P.C. v. Bernard L. Madoff Inv. Sec. LLC, 513 B.R. 222 (S.D.N.Y. 2014). The district court held that section 550 does not apply extraterritorially and cannot be used to recover property that one foreign entity received from another foreign entity. It also ruled that comity limited the scope of section 550(a)(2) because the foreign jurisdictions in which feeder fund bankruptcy cases were pending "have a greater interest in applying their own laws than does the United States." Id. at 232.

On remand, the bankruptcy court applied the district court’s reasoning and dismissed the trustee’s complaint. Specifically, it held that: (i) as to certain foreign investors, the U.S. "has no interest in regulating the relationship between [the feeder funds] and their investors or the liquidation of [the feeder funds] and the payment of their investors’ claims"; (ii) the foreign countries in which liquidation proceedings had been commenced against certain feeder funds had a greater interest than the U.S. "in regulating the activities that gave rise to the Trustee’s subsequent transfer claims"; and (iii) the recovery claims against the remaining foreign investors must be dismissed under the presumption against extraterritoriality. See S.I.P.C. v. Madoff, 2016 WL 6900689, at *14-16 (Bankr. S.D.N.Y. Nov. 22, 2016), vacated and remanded, 917 F.3d 85 (2d Cir. 2019). The SIPA trustee appealed directly to the Second Circuit.

The Second Circuit’s Ruling

The Second Circuit vacated the ruling and remanded the case below.

Initially, the court examined the focus of section 550(a) in assessing whether the litigation at issue involved either a domestic or foreign application of the provision for purposes of the presumption against extraterritoriality. Citing WesternGeco LLC v. ION Geophysical Corp., 138 S.Ct. 2129 (2018), the Second Circuit concluded that it was necessary to look to section 548(a)(1)(A) to determine section 550(a)’s "focus" because the two provisions operate "in tandem."

Examining section 548(a)(1)(A), the Second Circuit determined that the focus of the provision and by extension, the focus of its "utility provision," section 550(a), is the initial transfer because "[o]nly the initial transfer involves fraudulent conduct, or any conduct, by the debtor." It therefore rejected the district court’s conclusion below that "the appropriate ‘transaction’ to determine the extraterritoriality question is the subsequent transaction." Ignoring section 548(a)(1)(A) entirely and looking only to section 550(a)(2), the Second Circuit noted, would be analyzing the latter provision in a vacuum, which it refused to do.

Next, the Second Circuit ruled that "a domestic debtor’s allegedly fraudulent, hindersome, or delay-causing transfer of property from the United States is domestic activity for the purposes of §§ 548(a)(1)(A) and 550(a)." Thus, the presumption against extraterritoriality did not prohibit the SIPA trustee from recovering the transferred property using section 550(a), "regardless of where any initial or subsequent transferee is located."

According to the Second Circuit, the relevant conduct is "the debtor’s fraudulent transfer of property, not the transferee’s receipt of property." It also wrote that "[w]hen a domestic debtor commits fraud by transferring property from a U.S. bank account, the conduct that § 550(a) regulates takes place in the United States." In so ruling, the Second Circuit declined to adopt the balancing test applied by the lower courts, which "weighed the location of the account from which and to which the subsequent transfer was made, and the location or residence of the subsequent transferor and transferee."

Because the case involved domestic application of section 550(a), the Second Circuit "express[ed] no opinion on whether [the provision] clearly indicates its extraterritorial application."

Finally, the Second Circuit ruled that prescriptive comity did not bar the SIPA trustee from attempting to recover the transfers under section 550(a). According to the court, no parallel foreign bankruptcy proceedings were pending to which the U.S. courts should defer as a matter of comity. Any pending liquidation proceedings involved the feeder funds, not BLMI. Moreover, the Second Circuit explained, the interests of the foreign jurisdictions in which such proceedings had been commenced were "not compelling enough" compared to the interest of the U.S. in applying its law to the disputes:

The Bankruptcy Code gives us no reason to think Congress would have decided that trustees looking to recover property in domestic proceedings are out of luck when trustees in foreign proceedings may be interested in recovering the same property. In fact, § 550(a)(2) suggests the opposite: that by allowing trustees to recover property from even remote subsequent transferees, Congress wanted these claims resolved in the United States, rather than through piecemeal proceedings around the world.

In early April, the Second Circuit denied the foreign investors’ petition for reconsideration of its ruling. However, on April 23, 2019, the Second Circuit granted the investors’ motion to stay the effectiveness of its decision pending the disposition of the investors’ impending petition asking the U.S. Supreme Court to review it.


If undisturbed on possible review by the Supreme Court, Madoff is a positive development for bankruptcy (or SIPA) trustees seeking to recover property transferred by U.S. debtors abroad in transactions that are successfully challenged under the Bankruptcy Code’s avoidance provisions. By clarifying that a U.S. debtor’s fraudulent transfer of property "from the United States" is domestic activity, the Second Circuit appears to have removed the extraterritoriality debate from the equation in many cases.

However, because the Second Circuit concluded that the case involved domestic application of section 550(a), the ruling does not resolve the dispute (even among courts in the Second Circuit) over whether Congress intended the avoidance provisions of the Bankruptcy Code, including section 550(a), to apply extraterritorially. For example, a trustee’s ability to avoid and recover transfers by a U.S. debtor of property not located in the U.S. is still a matter of dispute.

Moreover, although Madoff may give a trustee in some jurisdictions a leg up in avoidance litigation involving foreign transferees, practical problems remain. For example, a U.S. court may lack personal jurisdiction over a non-U.S. transferee, and that would significantly complicate efforts to enforce any avoidance ruling. See Lyondell, 543 B.R. at 147 (concluding that a litigation trustee in a chapter 11 case failed to make a prima facie case for the court’s exercise of personal jurisdiction consistent with due process over a foreign transferee in avoidance litigation).

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