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I Know It's Over

posted by Stephen Lubben

And it never really began -- the Supreme Court has denied the Indiana Pension Funds' appeal as moot in Chrysler.

UPDATE:  A few further thoughts on this: First, because the Supreme Court has vacated the 2d Circuit opinion, the bankruptcy community has lost an appellate precedent on §363 sales. To be sure, I expect the opinion to remain highly influential, even if no longer binding. Second, while this potentially opens up an avenue for appeal in the GM case, I still think the most likely result there is dismissal for mootness. The Supreme Court's actions today seem to make that more likely. Finally, for those of you up on your "vacation" law, you might wonder why the Court didn't vacate "all the way down." I assume the answer is that they didn't want to "undo" the bankruptcy court's sale order.


The vacatur is very interesting. It's almost a signal that the Supreme Court wants the legal community to consider Chrysler (and perhaps GM by implication) as a "one off" similar to what they tried to signal in Bush v. Gore.

Very strange ruling. What was moot? The original order of early June by the Second Circuit denying the appeal on the merits and affirming the judgment of the bankruptcy court? But that makes no sense because the effectiveness of the bankr. court order had been stayed until the Second Circuit ruled. So how could the Second Circuit's judgment of early June have been moot, as the Supreme Court today decided, when the order approving the sale had been stayed until the Second Circuit had a chance to rule on it. Moreover, even the effectiveness of the Second Circuit's judgment was stayed until SCOTUS had a chance to review the petition on an emergency basis. Me thinks SCOTUS just didn't like the Second Circuit's opinion so junked the whole thing.

As I wrote in this post (http://blog.lawrencedloeb.com/2009/06/little-anti-climactic.html ), without an allegation questioning the good faith of the parties to the transaction, the sale was final under Section 363(m). That made, I guess, the question of reviewing the transaction moot.

Vacating the 2nd Circuit would seem to indicate that SCOTUS would not look kindly upon a repeat performance (Chrysler and GM were "unique" cases). I wouldn't be surprised if any attempt to duplicate Chrysler received quite a different reception upon a request for stay from SCOTUS.

I take it as SCOTUS saying "we'll let you get away with this THIS time, but don't try it again."

Of course, I could be just dreaming.

How could a Circuit opinion "remain highly influential" if it has been vacatedby the Supremes? I would be extremely wary of citing any vacated opinon for anything (other than in an academic or historical context).

It would seem to me that a Bankruptcy Court would have to be extremely self confident to go against a Circuit Court opinion that was not reversed on the merits.

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