Monday, June 24, 2013

SCOTUS Cert Grants of Interest: Executive Benefits & UBS

With all of this week’s end-of-the-Term anticipation and excitement, some of today’s cert. grants may have slipped below the radar. But here are two cases that will be argued next Term that may be of interest:

Executive Benefits Insurance Agency v. Arkison (No. 12-1200) revisits the relationship between Article III and bankruptcy proceedings. Here are the questions presented:

In Stern v. Marshall, 131 S. Ct. 2594 (2011), this Court held that Article III of the United States Constitution precludes Congress from assigning certain “core” bankruptcy proceedings involving private state law rights to adjudication by non-Article III bankruptcy judges. Applying Stern, the court of appeals for the Ninth Circuit held that a fraudulent conveyance action is subject to Article III. The court further held, in conflict with the Sixth Circuit, that the Article III problem had been waived by petitioner’s litigation conduct, which the court of appeals construed as implied consent to entry of final judgment by the bankruptcy court. The court of appeals also held, in conflict with the Seventh Circuit, that a bankruptcy court may issue proposed findings of fact and conclusions of law, subject to a district court’s de novo review, in “core” bankruptcy proceedings where Article III precludes the bankruptcy court from entering final judgment. The court of appeals’ decision presents the following questions, about which there is considerable confusion in the lower courts in the wake of Stern:

1. Whether Article III permits the exercise of the judicial power of the United States by bankruptcy courts on the basis of litigant consent, and, if so, whether “implied consent” based on a litigant’s conduct, where the statutory scheme provides the litigant no notice that its consent is required, is sufficient to satisfy Article III.

2. Whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding under 28 U.S.C. 157(b).

UBS Financial Services v. Union de Empleados de Muelles (No. 12-1208) presents the question:

Should, consistent with the standard of review employed by other Circuit Courts of Appeals, but in direct conflict with the decision below, the United States Court of Appeals for the First Circuit have reviewed for abuse of discretion the District Court’s determination, pursuant to Rule 23.1, that the particularized facts alleged in a shareholder derivative complaint were insufficient to excuse a pre-suit demand on the corporation's board of directors?


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So did the minority in Stern v Marshall vote to grant certiorari in Executive Benefits to swing Justice Kennedy and the Court back to the Functionalist doctrine expressed by Justice Breyer’s dissent in Stern as represented in cases like Schor, Thomas, and Katchen.

Or, did the majority in Stern v Marshall grant certiorari in Executive Benefits to broaden the reach of Stern v Marshall.

Those seem the most logical intentions of the Court, but maybe the majority wants to limit the reach of Stern v Marshall.

I say we are in for another bombshell limiting the authority of bankruptcy courts to decide common law causes of action between third parties qualifying for a jury trial.

Otherwise, Stern v Marshall was a bad joke.

Just one vote either way will carry the day.

Posted by: Robert White | Jun 24, 2013 10:15:00 PM

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