The Supreme Court will hear two bankruptcy cases in the term to begin this coming October. Yesterday, the high court granted certiorari to decide whether the failure to obtain the stay of a sale approval order erects a jurisdictional bar to appeal under Section 363(m), according to an analysis in today’s Rochelle’s Daily Wire. The courts of appeals are split 6-2. Led by the Second Circuit, the minority hold that Section 363(m) is jurisdictional and bars an appeal from any order that is “integral” to a sale order. The Fifth Circuit sides with the Second. The majority — composed of the Third, Sixth, Seventh, Ninth and Tenth Circuits — hold that Section 363(m) only sets limits on the relief that a court may grant on appeal from a sale order and is not jurisdictional. With the grant of certiorari, the Supreme Court will review MOAC Mall Holdings LLC v. Transform Holdco LLC (In re Sears Holdings Corp.), 20-1846, 2021 BL 481940, 2021 US App Lexis 37358, 2021 WL 5986997 (2d Cir. Dec. 17, 2021).
