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Merit Management Group, LP v. FTI Consulting, Inc.

Paid petition · United States Court of Appeals for the Seventh Circuit, No. 15-3388 · judgment July 28, 2016

Decided · February 27, 2018
At-filing estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Section 546(e) of the Bankruptcy Code prohibits a trustee from avoiding a transfer that, among other things, is made "by or to (or for the benefit of)" a financial institution. The payment at issue in this case was made by one financial institution to another financial institution, but the benefit and detriment of this transfer ultimately impacted companies that are not financial institutions. The question presented is thus: Whether the safe harbor of 11 U.S.C. § 546(e) prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the Second, Third, Sixth, Eighth, and Tenth Circuits, but contrary to decisions from the Eleventh Circuit and now the Seventh Circuit.

Counsel of record

For petitioner
Brian Christopher Walsh
Bryan Cave Leighton Paisner LLP

For respondent
Paul D. Clement
Clement & Murphy, PLLC

Case

Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 8 conferences

Amicus briefs
5 merits
(2 supporting pet./neither, 3 respondent)

Linked docket
16A492

Argument & decision

Argued November 6, 2017 — Brian C. Walsh · Paul D. Clement. Listen and read along · the Court’s audio

Decided February 27, 2018. Opinion by Sotomayor.

Proceedings

  1. Apr 02 2018
    JUDGMENT ISSUED.
  2. Feb 27 2018
    Judgment is affirmed and case remanded. Sotomayor, J., delivered the opinion for a unanimous Court.
  3. Nov 06 2017
    Argued. For petitioner: Brian C. Walsh, St. Louis, Mo. For respondent: Paul D. Clement, Washington, D. C.
  4. Oct 06 2017
    Reply of petitioner Merit Management Group, LP filed. (Distributed)
  5. Sep 18 2017
    Brief amici curiae of Tribune Company Retirees and Noteholders filed. (Distributed)
  6. Sep 18 2017
    Brief amicus curiae of National Association of Bankruptcy Trustees filed. (Distributed)
  7. Sep 18 2017
    Brief amici curiae of Bankruptcy Law Professors Ralph Brubaker, et al. filed. (Distributed)
  8. Sep 11 2017
    Brief of respondent FTI Consulting, Inc. filed. (Distributed)
  9. Sep 07 2017
    CIRCULATED
  10. Aug 31 2017
    SET FOR ARGUMENT on Monday, November 6, 2017
  11. Jul 20 2017
    Brief amici curiae of Various Former Tribune and Lyondell Shareholders filed.
  12. Jul 18 2017
    Brief amicus curiae of Opportunity Partners, L.P. filed.
  13. Jul 13 2017
    Joint appendix filed. (Statement of costs filed)
  14. Jul 13 2017
    Brief of petitioner Merit Management Group, LP filed.
  15. Jun 28 2017
    Consent to the filing of amicus curiae briefs in support of either party or of neither party received from counsel for the respondent.
  16. Jun 22 2017
    Consent to the filing of amicus curiae briefs in support of either party or of neither party from counsel for the petitioner.
  17. Jun 05 2017
    The time to file the joint appendix and petitioner's brief on the merits is extended to and including July 13, 2017.
  18. Jun 05 2017
    The time to file respondent's brief on the merits is extended to and including September 11, 2017.
  19. May 01 2017
    Petition GRANTED.
  20. Apr 24 2017
    DISTRIBUTED for Conference of April 28, 2017.
  21. Apr 17 2017
    DISTRIBUTED for Conference of April 21, 2017.
  22. Apr 10 2017
    DISTRIBUTED for Conference of April 13, 2017.
  23. Mar 28 2017
    Rescheduled.
  24. Mar 27 2017
    DISTRIBUTED for Conference of March 31, 2017.
  25. Mar 20 2017
    DISTRIBUTED for Conference of March 24, 2017.
  26. Mar 20 2017
    Rescheduled.
  27. Mar 13 2017
    DISTRIBUTED for Conference of March 17, 2017.
  28. Mar 13 2017
    Rescheduled.
  29. Feb 27 2017
    DISTRIBUTED for Conference of March 3, 2017.
  30. Feb 27 2017
    Rescheduled.
  31. Feb 22 2017
    Rescheduled.
  32. Feb 08 2017
    DISTRIBUTED for Conference of February 24, 2017.
  33. Feb 03 2017
    Reply of petitioner Merit Management Group, LP filed.
  34. Jan 19 2017
    Brief of respondent FTI Consulting, Inc. in opposition filed.
  35. Dec 16 2016
    Petition for a writ of certiorari filed. (Response due January 19, 2017)
  36. Nov 17 2016
    Application (16A492) granted by Justice Kagan extending the time to file until December 19, 2016.
  37. Nov 14 2016
    Application (16A492) to extend the time to file a petition for a writ of certiorari from November 28, 2016 to December 19, 2016, submitted to Justice Kagan.