In my last article, I considered the possibility of a bankruptcy trustee suing to recover a “preferential transfer.” Preference lawsuits are very common in large bankruptcy cases, and reach many unsuspecting individuals and businesses. Here are a few strategies to help prevent (or deal with) a preference lawsuit:
1. Do not extend much credit to a customer before confirming its creditworthiness. Your due diligence may avoid a credit sale that otherwise could lead to a preference lawsuit (or the more obvious result: nonpayment).
2. Take and perfect a security interest in the goods that you sell. If you can be made whole by repossessing the goods, such that the payment will not improve your position, the payment may not be recoverable as a preference.
3. Determine if you have a defense, the most common of which being:
a. The “contemporaneous exchange” defense – e.g., a C.O.D. sale.
b. The “ordinary course of business” defense – did the debtor incur, in the ordinary course of its business, the debt for which the debtor made the payment, and either make the payment in the ordinary course of its and your business or financial affairs, or according to ordinary business terms? Said differently, was the debt, the payment and the surrounding events typical or unusual for all parties involved?
c. The “subsequent new value” defense – after the debtor made the payment to you, did you provide more goods or services?
(each defense may depend on other factors and require complex analyses not discussed here)
4. Seek a properly worded guaranty, and indemnification, from a third party capable of protecting your claim.
These strategies might not guarantee a favorable outcome, but they are a good starting point to protect yourself.
Doug Goldstein, Attorney at Law 