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Marc S. Kirschner v. Dennis J. FitzSimons, et al.

Paid petition · United States Court of Appeals for the Second Circuit, No. 19-3049 · judgment August 20, 2021

Certiorari denied · February 22, 2022
Pre-decision estimate: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for a Second Circuit decision below, a dissent in the court below (flagged in the petition), and counsel who has filed here before.

Question presented

Under 11 U.S.C. § 548(a)(1)(A), a bankruptcy trustee may avoid a transfer if the debtor “made such transfer . . . with actual intent to hinder, delay, or defraud any entity.” When the debtor is a corporation, which can act only through its agents, courts look to the intent of those agents to discern whether this mens rea element is satisfied. In this case, involving the multi-billion-dollar failed leveraged buyout (LBO) of the Tribune Company, the trustee, suing on behalf of Tribune retirees and creditors who recovered pennies on the dollar in Tribune’s inevitable bankruptcy, alleged that Tribune’s chief executive officer and other highranking officers acted with fraudulent intent in engineering and executing the LBO. Among other things, the trustee alleged that senior management had concocted bogus projections, lied to the board of directors, and engaged in a host of other fraudulent activity. The district court, affirmed on this ground by the court of appeals, nevertheless held, as a matter of law, that senior management’s fraudulent intent could not be imputed to Tribune for purposes of a Section 548(a)(1)(A) claim. In the lower courts’ view, because a special committee of the board of directors, and not senior management, “controlled” the final decision to make the fraudulent transfer, only the special committee’s intent was relevant for imputation purposes. The question presented is whether a corporate agent must be “in a position to control” the challenged transfer for her intent to be imputable to the corporation under Section 548(a)(1)(A).

Counsel of record

For petitioner
Lawrence Saul Robbins
Robbins, Russell, Englert, Orseck & Untereiner LLP

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

Case

Conference history
Distributed for 1 conference

Amicus briefs
3 cert-stage

Proceedings

  1. Feb 22 2022
    Petition DENIED.
  2. Feb 14 2022
    Brief amici curiae of Law Professors filed. (Distributed)
    Main DocumentProof of ServiceCertificate of Word Count
  3. Feb 14 2022
    Brief amicus curiae of Deborah A. DeMott filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  4. Feb 11 2022
    Brief amici curiae of Nine Bankruptcy Trustees and Independent Fiduciaries filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  5. Feb 02 2022
    DISTRIBUTED for Conference of 2/18/2022.
  6. Jan 25 2022
    Waiver of right of respondents ACT, Inc. Large-Cap Value Fund, et al. to respond filed.
    Main Document
  7. Jan 24 2022
    Waiver of right of respondents Alphadyne International Master Fund, Ltd. to respond filed.
    Main Document
  8. Jan 22 2022
    Waiver of right of respondents AMETEK Inc. Employees Master Retirement Trust, et al. to respond filed.
    Main Document
  9. Jan 21 2022
    Waiver of right of respondents Alyce Tuttle Fuller Trust U/A DTD 10/03/2003, Alyce Tuttle Fuller, Trustee, et al. to respond filed.
    Main Document
  10. Jan 21 2022
    Waiver of right of respondents Aetna, Inc., et al. to respond filed.
    Main Document
  11. Jan 21 2022
    Waiver of right of respondents Robert R. McCormick Foundation and Cantigny Foundation to respond filed.
    Main Document
  12. Jan 21 2022
    Waiver of right of respondents The Chandler Trusts to respond filed.
    Main Document
  13. Jan 21 2022
    Waiver of right of respondents 1199SEIU Greater NY Pension Fund LCV, et al. to respond filed.
    Main Document
  14. Jan 21 2022
    Waiver of right of respondents Bear Stearns Asset Management Inc., et al. to respond filed.
    Main Document
  15. Jan 20 2022
    Waiver of right of respondents Allianz Global Investors Europe GmbH, acting for the account of AllianzGI-Fonds HPT, et al. to respond filed.
    Main Document
  16. Jan 20 2022
    Waiver of right of respondents Retirement Systems of Alabama, et al. to respond filed.
    Main Document
  17. Jan 20 2022
    Waiver of right of respondents Susquehanna Capital Group, Susquehanna Investment Group, and Susquehanna Investment Group as custodian of the SIG-SS CBOE Joint Account to respond filed.
    Main Document
  18. Jan 20 2022
    Waiver of right of respondents Morgan Stanley & Co. International PLC f/k/a Morgan Stanley & Co. International Limited, et al. to respond filed.
    Main Document
  19. Jan 05 2022
    Petition for a writ of certiorari filed. (Response due February 14, 2022)
    PetitionAppendixCertificate of Word CountProof of ServiceOther