High Court Ruling In FTI Consulting Makes Eminent Sense

Law360 (March 5, 2018, 3:05 PM EST) -- On Feb. 27, 2018, the U.S. Supreme Court issued an important decision in Merit Management Group LP v. FTI Consulting Inc.,[1] limiting the scope of the securities safe harbor in 11 U.S.C. § 546(e). That safe harbor immunizes from the avoiding powers of the bankruptcy trustee certain types of transfers, including settlement payments, in securities transactions “made by or to (or for the benefit of)” qualifying securities or financial entities.

Writing for a unanimous court, Justice Sonia Sotomayor held that the safe harbor applies only with respect to the overarching transfer that the bankruptcy trustee is actually seeking to avoid.  In...

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