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On Feb 27, 2018, in Merit Management Group, LP v. FTI Consulting, Inc., 138 S. Ct. 883 (2018), the Supreme Court of the United States issued a decision holding that: 1) the only relevant transfer for purposes of analyzing whether the Bankruptcy Code section 546(e) “safe harbor” applies is the “overarching transfer” that the trustee is seeking to avoid (as opposed to the component transfers between mere intermediaries); and 2) under the facts presented, the relevant transfer between the debtor and transferee was not covered by the safe harbor because it was not “made by or to (or for the benefit of)” a “financial institution” or other covered entity. Merit Management Group, LP v. FTI Consulting, Inc., 138 S. Ct. 883 (2018), abrogating In re Quebecor World (USA) Inc., 719 F.3d 94 (2d Cir. 2013), In re QSI Holdings, Inc., 571 F.3d 545 (6th Cir. 2009), Contemporary Indus. Corp. v. Frost, 564 F.3d 981 (8th Cir. 2009), In re Resorts Int’l Inc., 181 F.3d 505 (3d Cir. 1999), In re Kaiser Steel Corp., 952 F.2d 1230 (10th Cir. 1991).
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By Jonathan P. Friedland, Mark Melickian & Hajar Jouglaf
A large number of reported decisions interpreting Sub V have mostly addressed the eligibility threshold for a debtor to proceed under the new law. And legitimate questions will continue to present themselves. Such is the nature of most new (and even not-so-new) statutes.
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