Here’s a vindication for the Small Business Administration’s discrimination against bankruptcy debtors:
On March 23, 2022, Massachusetts-based Footprint Power Salem Harbor Development LP and certain affiliates, which operate a 674 MW natural gas-fired combined-cycle electric power plant in Salem, Massachusetts, filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Case No. 22-10239).
How much precedential value does an 1885 opinion of the U.S. Supreme Court deserve on a bankruptcy discharge issue?
That’s a central question in the Petition for a Writ of Certiorari before the U.S. Supreme Court in Bartenwerfer v. Buckly, Case No. 21-908 (“Distributed for Conference of 4/29/2022”).
Facts of the Case [Fn. 1]
A Petition for certiorari is before the U.S. Supreme Court in Speech & Language Center, LLC, and Chryssoula Marinos-Arsenis v. Horizon Blue Cross Blue Shield of New Jersey
Petition’s Question
The Question presented in the Petition is this:
The concept of a single purpose entity is often present in the purchase and financing of commercial real estate. A lender may require its borrower to be a single purpose entity in order to lessen the lender’s bankruptcy risk in the event that the borrower or any of its parent entities file for bankruptcy, and also to ensure that no other businesses of the borrower adversely affect the property that is the subject of the loan.
As a result of recent high profile Chapter 11 cases, such as Purdue Pharma and Johnson & Johnson, there has been great Congressional and media attention to controversial Chapter 11 practices. These include debtors’ forum and judge shopping, nonconsensual third-party releases of nondebtors in the Plan of Reorganization, and the use of divisional mergers to isolate liabilities into special purpose entities.
In 2021, to address these concerns, two bills were introduced in the U.S. Senate and House of Representatives:
The Bankruptcy Protector
The Supreme Court recently denied certiorari in Picard v. Citibank, in which the petitioner sought review of a Second Circuit decision on a seemingly obscure point of law: the pleading burden for “good faith” under Section 550 of the Bankruptcy Code. The Second Circuit’s decision is part of, and highlights, a larger, systemic problem in the evolution of bankruptcy law over the last decade—the multiplication of trustee-friendly interpretations of the Bankruptcy Code that, when combined, leave innocent subsequent transferees unfairly vulnerable to meritless clawback suits.
On March 14, 2022, the United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) revisited the issue of the rejection of filed-rate contracts in bankruptcy where such contracts are governed by the Federal Energy Regulatory Commission (“FERC”). The ruling marks the first time the Fifth Circuit has addressed this issue since its 2004 decision in In re Mirant Corp.1 In Federal Energy Regulatory Commission v.
In a few months, Justice Stephen G. Breyer is set to retire from the U.S. Supreme Court.
The bankruptcy world will miss him.
The reason for discussing this subject now (instead of waiting for the retirement to actually happen) is this:
- The triumph of Justice Breyer’s Footnote 2 in Merit Management, as accomplished by a denial of certiorari on 2/22/2022.
What follows is a summary of four important Supreme Court bankruptcy opinions in which Justice Breyer played a significant role—starting with the Footnote 2 opinion.