You Say "EBIA," I Say "Bellingham," We All Say "Pottow"

Credit Slips contributor John Pottow will be arguing the upcoming EBIA v. Arkison (née Bellingham) case in the U.S. Supreme Court. As briefly summarized in an earlier post, the question in the case has to do with federal bankruptcy court jurisdiction over a lawsuit within a bankruptcy case, namely a fraudulent transfer action.

We have a broad audience so I'll leave the description at that one sentence. If you are bankruptcy expert you should already know the case. If you are not, it would take about 70 pages of explication about the historical development of the bankruptcy system to understand the convoluted jurisdictional framework both Congress and the Supreme Court have bestowed on the bankruptcy courts. Fortunately, the 70-page brief for the respondent, written by Pottow with attorneys G. Eric Brunstad, Jr., and Kate M. O'Keeffe, is exactly such a tour de force explication. Indeed, even if you are a bankruptcy expert, the brief will be a great resource for you on the issues the case raises.

And, although it pains me ever to write such a phrase . . . Pottow is right.

Doesn't Anyone Want to Talk About Jurisdiction This Week?

With the Second Circuit's ruling in the Argentina/NML case and the now-urgent need to get secured transactions and bankruptcy into the 1L curriculum, Credit Slips has yet to give attention to Wellness International Network, Limited,  issued on Aug 21 by the Seventh Circuit. Luckily, on this issue, I don't mind getting the ball rolling, and then stepping out of the way. 

Supreme Court Grants Cert in Two Slips-Worthy Cases

The Supreme Court granted cert this morning in two cases of note to Credit Slips readers, one on the CFPB and one on bankruptcy court jurisdiction. First, in NLRB v. Noel Canning, the Court agreed to decide whether the president properly exercised his power to make recess appointments to the National Labor Relations Board. Because the current director of the CFPB, Richard Cordray, was appointed at the same time as the NLRB members, the case would seem to have implications for the CFPB as Adam Levitin outlined when the case was in the lower courts. In addition to the questions raised in the cert petition, the Court asked the parties also to brief the issue of the president making recess appointments during pro-forma 3-day sessions of the Senate, suggesting the Court may be looking for narrow grounds on which to reach a decision.

Will the Supremes Trim Back Bankruptcy Courts' Powers?

In addition to the fair housing case that Alan noted, the Supreme Court also granted cert in a bankruptcy case, Law v. Siegel. Having listened to many bad jokes about my last name over the years, my initial reaction was to set up an over/under pool on how many bankruptcy newsletters and blogs will run articles under a title that has a bad pun on "Law v. Siegel" such as "Supreme Court Lays Down the 'Law' on Bankruptcy Exemptions." Because U.S. governmental authorities are protecting us from the tyranny that was InTrade, my over/under challenge will have to remain hypothetical.

My second reaction was to wonder what trivial bankruptcy issue the Court now had deemed cert-worthy while it seems to pass on more important cases. This time, however, the Court has picked up an important issue on which the lower courts had split. More significantly, the case presents an opportunity for the Court to address the universal solvent of the Bankruptcy Code--the provision that bankruptcy judges and lawyers seize upon when all else is against them--namely section 105 of the Bankruptcy Code.