SECTION 546 ( e )’ S NOT-SO-SAFE HARBOR
structed a scheme for the purpose of siphoning funds from the Debtor for the Defendants ’ benefit . In his last opinion before retiring from the bench , Judge Robert D . Drain discussed his concerns regarding the reach of § 546 ( e ), writing “[ g ] iven the importance of fraudulent transfer law in bankruptcy cases , Congress should act to restrict to public transactions its current overly broad free pass in section 546 ( e ) that has informed the playbook of private loan and equity participants to loot privately held companies to the detriment of their non-insider creditors with effective impunity .” The undersigned agrees with Judge Drain ’ s concerns and sentiments .
It remains to be seen whether the growing chorus will be enough to prod Congress into action .
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