I’m a little skeptical of the “new value” point. The rationale behind the exception is that, “because new value is given, a contemporaneous exchange does not diminish the debtor’s estate.” In re JWJ Contracting Co., Inc., 371 F.3d 1079, 1081 (9th Cir. 2004). A grantee might provide value in a philanthropic sense, by doing charitable work, but that work wouldn’t restore the financial value to FTX, which is what the bankruptcy court cares about.
(This is not legal advice; I am not a lawyer; I very much agree with Jason’s caution against overconfidence in either direction.)
Yes, that’s definitely a drawback of that theory. The potential argument for would be that we ordinarily employ some degree of presumtpion that the business decisions of a corporation are rational (e.g., the “business judgment rule”), and that principle might justify starting with some belief that the transaction generated something of value for the corporation. Cynically: enhancement of its reputation.
I’m a little skeptical of the “new value” point. The rationale behind the exception is that, “because new value is given, a contemporaneous exchange does not diminish the debtor’s estate.” In re JWJ Contracting Co., Inc., 371 F.3d 1079, 1081 (9th Cir. 2004). A grantee might provide value in a philanthropic sense, by doing charitable work, but that work wouldn’t restore the financial value to FTX, which is what the bankruptcy court cares about.
(This is not legal advice; I am not a lawyer; I very much agree with Jason’s caution against overconfidence in either direction.)
Yes, that’s definitely a drawback of that theory. The potential argument for would be that we ordinarily employ some degree of presumtpion that the business decisions of a corporation are rational (e.g., the “business judgment rule”), and that principle might justify starting with some belief that the transaction generated something of value for the corporation. Cynically: enhancement of its reputation.