On 13 March 2026, the Supreme Court handed down judgments in two important cases concerning a bank's right of set-off (netting) after the reference date of Art. 54 of the Dutch Bankruptcy Act (Fw). Both cases concern to the question whether a bank may set off incoming payments against outgoing payments in the phase preceding the account holder’s bankruptcy or suspension of payments.

Here’s a judicial estoppel hypothetical:

• debtor files Subchapter V bankruptcy and achieves a confirmed plan;
• in the bankruptcy debtor fails to disclose a pre-petition lawsuit claim;
• after plan confirmation, debtor files suit on the pre-petition lawsuit claim; and
• defendant seeks dismissal of the lawsuit, with prejudice, on grounds of judicial estoppel—i.e., for debtor/plaintiff’s failure to disclose the claim in bankruptcy.

Question: Who should be the ultimate beneficiary of a lawsuit claim that debtor fails to disclose:

A Petition for Writ of Certiorari has been granted by the U.S. Supreme Court in Keathley v. Buddy Ayers Construction, Inc., Case No. 25-6, on a ruling from the U.S. Fifth Circuit Court of Appeals.[Fn. 1]

The Question Presented in Kethley v. Buddy Ayers is this:

The U.S. Supreme Court does not like the Bankruptcy Code. It never has. Two examples are:

Mass torts and resulting litigation are a reality of life in these United States.

But one of the truly shocking things about mass tort litigation, in recent times, is this:

• judicial delays override the wishes of mass tort victims for prompt payment of negotiated amounts.

A current example of such delays is the Boy Scouts confirmed bankruptcy plan.

Chronology

Here is a short Chronology of the Boy Scouts bankruptcy plan—and the lapse of more than three years since confirmation without a final resolution:

In its decision in In re Brandt, the court seems to draw a clear line: No post-petition add-ons for attorneys’ fees and costs when a secured claim arises from a judgment lien.

Recently, the U.S. Supreme Court denied certiorari in two cases involving bankruptcy questions:

Before the US Supreme Court’s landmark decision in Purdue Pharma,¹ it had become common practice for Chapter 11 debtors to include a consensual or nonconsensual non-debtor third-party release in their plans of reorganization.