Commission Preference Action Dismissed Based on Ordinary Course, New Value, and Reasonably Equivalent Value

A nationwide freight transportation company sued a commission‑based service provider to recover $16,370.00 in two payments as alleged preferential transfers under section 547(b) and constructively fraudulent transfers under section 548(a)(1)(B). The payments, issued within the 90‑day preference window, arose under a volume‑based participation agreement governing commission services.

We prepared a position statement advancing an ordinary course of business defense, a subsequent new value defense, and a reasonably equivalent value defense. Over a 14‑month course of dealing, the parties’ payment terms and tender methods remained stable, and the preference‑period payment interval averaged 28.72 days, ranging from 26 to 31 days—well within the historical range of 14 to 107 days and within one standard deviation of the historical average. No unusual collection efforts occurred, and all points were supported by the governing agreement, payment ledgers, and invoice history. Even assuming any portion of the transfers fell outside the ordinary course, the provider continued to render commission services after each payment, creating $12,077.50 in subsequent new value and reducing any theoretical exposure to $4,292.50. The same service record established reasonably equivalent value at standard contractual rates, undermining the constructive fraud claim.

Confronted with these defenses, the plaintiff voluntarily dismissed the case with no settlement payment. The outcome eliminated $16,370.00 in alleged clawback exposure and spared the client further litigation costs.

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