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Although business bankruptcy filings have trended down in recent months, the lingering legacy of litigation prompted by the surge in filings at the outset of the U.S. financial crisis remains with us and continues to strike many general counsel with unexpected actions for recovery of payments made by the debtor in the run-up to a Chapter 11 case. This article focuses on new lessons emerging from key preferential transfer cases issued since 2008, and will include practice points to assist general counsel in helping their organizations, insofar as possible, to mitigate future preference liability through thoughtful application of ordinary course of business, contemporaneous exchange, and prepayment strategies.

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