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Deutsche Bank Trust Company Americas, et al. v. Robert R. McCormick Foundation, et al.

Paid petition · United States Court of Appeals for the Second Circuit, No. 13-3992, 13-3875, 13-4178, 13-4196 · judgment December 19, 2019

Dismissed · December 2, 2020
Pre-decision estimate: 6% cert probability (95% interval 4%–9%)

Before the decision, about 1.5× the 4.1% base rate. The model weighted this up for a Second Circuit decision below, a circuit split argued in the petition, and a business petitioner.

Questions presented

  1. Whether the court of appeals correctly held, in conflict with the decisions of four other circuits and of this Court, that the presumption against preemption of state law does not apply to creditor-rights claims once federal bankruptcy law has been invoked.

  2. Whether the court of appeals correctly held that laws allowing creditors to avoid certain fraudulent transfers, which long have existed in every State, are preempted because they are an obstacle to the “purposes and objectives” of 11 U.S.C. § 546(e), notwithstanding this Court’s unanimous holding in Merit Management Group, LP v. FTI Consulting, Inc., 138 S. Ct. 883 (2018), that Section 546(e) does not have the purpose that the court of appeals ascribed to it.

  3. Whether, notwithstanding the holding in Merit that Section 546(e) does not exempt fraudulent transfers from avoidance merely because a financial institution acted as a conduit, the court of appeals correctly held that Section 546(e) does exempt certain fraudulent transfers from avoidance if executed via a bank as a conduit, on the ground, left open in Merit, that the bank’s customer is itself a “financial institution.” (i)

Counsel of record

For petitioner
Lawrence Saul Robbins
Friedman Kaplan Seiler Adelman & Robbins LLP

For respondent
Philip David Anker
Wilmer Cutler Pickering Hale and Dorr LLP

Case

Conference history
Distributed for 2 conferences

Amicus briefs
4 cert-stage

Proceedings

  1. Apr 19 2021
    Petition DENIED. Justice Alito took no part in the consideration or decision of this petition.
  2. Apr 01 2021
    Supplemental brief of respondents SAL Equity Trading, GP f/k/a Susquehanna Capital Group and Susquehanna Investment Group filed. (Distributed)
  3. Mar 31 2021
    DISTRIBUTED for Conference of 4/16/2021.
  4. Mar 31 2021
    Supplemental brief of petitioners Deutsche Bank Trust Company Americas, et al. filed. (Distributed)
  5. Mar 12 2021
    Brief amicus curiae of United States filed.
  6. Dec 02 2020
    Motion to dismiss under Rule 46.2 GRANTED. The petition for a writ of certiorari is dismissed only with respect to the respondents identified in the motion for partial dismissal filed October 29, 2020.
  7. Oct 29 2020
    Motion of petitioners under Rule 46.2(a) for partial dismissal of the petition for a writ of certiorari only with respect to certain respondents.
  8. Oct 05 2020
    The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Alito took no part in the consideration of this petition.
  9. Sep 09 2020
    DISTRIBUTED for Conference of 9/29/2020.
  10. Sep 08 2020
    Reply of petitioners Deutsche Bank Trust Company Americas, et al. filed. (Distributed)
  11. Aug 26 2020
    Brief of respondents Susquehanna Capital Group, et al. in opposition filed.
  12. Aug 10 2020
    Brief amici curiae of Public Law Scholars filed.
  13. Aug 10 2020
    Brief amici curiae of Eleven Bankruptcy Trustees filed.
  14. Aug 07 2020
    Brief amici curiae of Law Professors filed.
  15. Jul 16 2020
    Motion to extend the time to file a response is granted and the time is extended to and including August 26, 2020, for all respondents.
  16. Jul 15 2020
    Motion to extend the time to file a response from August 10, 2020 to August 26, 2020, submitted to The Clerk.
  17. Jul 06 2020
    Petition for a writ of certiorari filed. (Response due August 10, 2020)