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

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

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Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
16-784	7th Cir.	Nov 6, 2017 Tr.Aud.	Feb 27, 2018	9-0	Sotomayor	OT 2017

Holding: The Bankruptcy Code allows trustees to set aside and recover certain transfers for the benefit of the bankruptcy estate, including certain fraudulent transfers “of an interest of the debtor in property”; the Bankruptcy Code also sets out a number of limits on the exercise of these avoiding powers, including the Section 546(e) safe harbor – which, inter alia, provides that a “trustee may not avoid a transfer that is a … settlement payment … made by or to (or for the benefit of) a … financial institution .. or that is a transfer made by or to (or for the benefit of) a … financial institution … in connection with a securities contract.” In the Chapter 11 bankruptcy filed by Valley View Downs and its parent company, the only relevant transfer for purposes of the Section 546(e) safe harbor is the transfer that the trustee, FTI Consulting Inc., seeks to avoid, i.e., the transfer from Valley View to Merit Management Group for the sale of Bedford Downs Management’s stock.

Judgment: Affirmed and remanded, 9-0, in an opinion by Justice Sotomayor on February 27, 2018.

Opinion analysis: Justices reject limits on bankruptcy recovery of fraudulently transferred assets (Ronald Mann)
OT2017 #6: "Year of Munsingwear" (First Mondays)
Argument analysis: Justices dubious about limiting bankruptcy court’s right to recover fraudulently transferred assets (Ronald Mann)
OT2017 #5: “Oglethorpe’s Second Cousin” (First Mondays)
Argument preview: Justices to parse Bankruptcy Code’s fine print in high-stakes dispute over recovering assets for creditors of bankrupts (Ronald Mann)
Today's orders (Amy Howe)
Petition of the day (Kate Howard)

Date	Proceedings and Orders (key to color coding)
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.
Nov 17 2016	Application (16A492) granted by Justice Kagan extending the time to file until December 19, 2016.
Dec 16 2016	Petition for a writ of certiorari filed. (Response due January 19, 2017)
Jan 19 2017	Brief of respondent FTI Consulting, Inc. in opposition filed.
Feb 03 2017	Reply of petitioner Merit Management Group, LP filed.
Feb 08 2017	DISTRIBUTED for Conference of February 24, 2017.
Feb 22 2017	Rescheduled.
Feb 27 2017	DISTRIBUTED for Conference of March 3, 2017.
Feb 27 2017	Rescheduled.
Mar 13 2017	DISTRIBUTED for Conference of March 17, 2017.
Mar 13 2017	Rescheduled.
Mar 20 2017	DISTRIBUTED for Conference of March 24, 2017.
Mar 20 2017	Rescheduled.
Mar 27 2017	DISTRIBUTED for Conference of March 31, 2017.
Mar 28 2017	Rescheduled.
Apr 10 2017	DISTRIBUTED for Conference of April 13, 2017.
Apr 17 2017	DISTRIBUTED for Conference of April 21, 2017.
Apr 24 2017	DISTRIBUTED for Conference of April 28, 2017.
May 01 2017	Petition GRANTED.
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.
Jun 05 2017	The time to file respondent's brief on the merits is extended to and including September 11, 2017.
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.
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.
Jul 13 2017	Joint appendix filed. (Statement of costs filed)
Jul 13 2017	Brief of petitioner Merit Management Group, LP filed.
Jul 18 2017	Brief amicus curiae of Opportunity Partners, L.P. filed.
Jul 20 2017	Brief amici curiae of Various Former Tribune and Lyondell Shareholders filed.
Aug 31 2017	SET FOR ARGUMENT on Monday, November 6, 2017
Sep 07 2017	CIRCULATED
Sep 11 2017	Brief of respondent FTI Consulting, Inc. filed. (Distributed)
Sep 18 2017	Brief amici curiae of Tribune Company Retirees and Noteholders filed. (Distributed)
Sep 18 2017	Brief amicus curiae of National Association of Bankruptcy Trustees filed. (Distributed)
Sep 18 2017	Brief amici curiae of Bankruptcy Law Professors Ralph Brubaker, et al. filed. (Distributed)
Oct 06 2017	Reply of petitioner Merit Management Group, LP filed. (Distributed)
Nov 06 2017	Argued. For petitioner: Brian C. Walsh, St. Louis, Mo. For respondent: Paul D. Clement, Washington, D. C.
Feb 27 2018	Judgment is affirmed and case remanded. Sotomayor, J., delivered the opinion for a unanimous Court.
Apr 02 2018	JUDGMENT ISSUED.

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The Supreme Court released orders from the June 13 conference on Monday; the justices granted, vacated and remanded Klein v. Oregon Bureau of Labor and Industries.
Also on Monday, the justices released their opinions in four argued cases: Manhattan Community Access Corp. v. Halleck, Virginia Uranium Inc. v. Warren, Gamble v. United States and Virginia House of Delegates v. Bethune-Hill.
On Thursday, the justices released their opinions in four argued cases: Gundy v. United States, McDonough v. Smith, The American Legion v. American Humanist Association and PDR Network, LLC v. Carlton & Harris Chiropractic Inc.
Also on Thursday, the justices met for their June 20 conference; John Elwood's "Relist Watch" compiles the petitions that were relisted for this conference.
On Friday, the Supreme Court will release opinions in one or more argued cases at 10 a.m.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  The Bladensburg Cross does not violate the establishment clause of the First Amendment.
- Gamble v. United States
  The dual-sovereignty doctrine – under which two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns – is upheld.
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Recent Decisions
- Gundy v. United States TThe judgment of the U.S. Court of Appeals for the 2nd Circuit that 34 U. S. C. §20913(d) – which requires the U.S. attorney general to apply the Sex Offender Registration and Notification Act’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment – is not an unconstitutional delegation of legislative authority is affirmed.
- McDonough v. Smith The statute of limitations for Edward McDonough’s 42 U. S. C. §1983 fabricated-evidence claim against his prosecutor began to run when the criminal proceedings against him terminated in his favor – that is, when he was acquitted at the end of his second trial.
- PDR Network, LLC v. Carlton & Harris Chiropractic Inc. The extent to which a 2006 Federal Communications Commission order interpreting the term “unsolicited advertisement” binds lower courts may depend on the resolution of two preliminary questions that the U.S. Court of Appeals for the 4th Circuit should address in the first instance: (1) whether the order is the equivalent of a legislative rule, which has the force and effect of law, or an interpretative rule, which does not; and (2) whether PDR Network, LLC had a “prior” and “adequate” opportunity to seek judicial review of the order.
- The American Legion v. American Humanist Association The Bladensburg Cross does not violate the establishment clause of the First Amendment.
- Gamble v. United States The dual-sovereignty doctrine – under which two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns – is upheld.
- Manhattan Community Access Corp. v. Halleck Manhattan Community Access Corp., a private nonprofit corporation designated by New York City to operate the public access channels on the Manhattan cable system owned by Time Warner (now Charter), is not a state actor subject to the First Amendment.
- Virginia House of Delegates v. Bethune-Hill The House of Delegates lacks standing to appeal the invalidation of Virginia’s redistricting plan.
- Virginia Uranium, Inc. v. Warren The U.S. Court of Appeals for the 4th Circuit’s judgment that the Atomic Energy Act does not preempt Virginia’s prohibition on uranium mining in the commonwealth is affirmed.
see all this term’s cases »
Current Relists
- Atlanta Gas Light Co. v. Bennett Regulator Guards Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit erred in concluding that it had jurisdiction to review the Patent Trial and Appeal Board’s decision to institute inter partes review of respondent’s patent over respondent’s objection that it was time-barred; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred when it rejected the longstanding principle that a dismissal without prejudice leaves the parties as if a suit had never been brought, splitting the circuits.
- Banister v. Davis (1) Whether Gonzalez v. Crosby extends to post-judgment motions filed under Federal Rule of Civil Procedure 59(e); (2) whether, if Gonzalez does apply, a timely filed Rule 59(e) motion should toll the time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(iv); and (3) whether a pro se petitioner must be warned and given an opportunity to withdraw a post-judgment motion which has be recharacterized as a successive habeas petition if that recharacterization will effect his ability to file a timely notice of appeal.
- Department of Homeland Security v. Regents of the University of California (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
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Cases argued	69
Cases decided	53
Summary reversals	5
Merits cases granted to date	74

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