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A petition for certiorari is presently pending with respect to the Sixth Circuit’s decision in In re Greektown Holdings LLC.[1] If granted, the U.S. Supreme Court will consider whether the Bankruptcy Code abrogates the sovereign immunity of Indian tribes.[2]

Factual Background

On June 3, 2019, the U.S. Supreme Court released a unanimous decision in Taggart v. Lorenzen concluding that a court is authorized to “impose civil contempt sanctions when there is no objectively reasonable basis for concluding that the creditor's conduct might be lawful under the discharge order.”[1] Put another way, “civil contempt ...

With more than 900 members, ABI’s Bankruptcy Litigation Committee remains one of the largest and most active of ABI’s committees. The committee, its leadership and its members were quite busy in 2019, so we wanted to take a moment to quickly update you about what we’ve been working on.

This November, the Supreme Court will hear oral argument in Ritzen Group Inv. v. Jackson Masonry LLC[1] and ultimately will determine whether a particular bankruptcy court order that denied a stay-relief motion is a final, immediately appealable order under 28 U.S.C. § 158(a)(1). But perhaps the most important issue in the case for practitioners generally is that the Court is poised to resolve a circuit split over whether all orders denying stay relief are final, immediately appealable orders as a categorical rule.

When the IRS pays a tax refund to the corporate group, it always issues that refund to the corporate parent — even if some or all of the losses are attributable to one of its subsidiaries. That raises an oft-litigated and highly significant question: Who owns the refund? Is it the parent who holds it, or the subsidiary that gave rise (in whole or in part) to the underlying tax losses? Circuits are intractably divided on the answer to that question.[1]

Since 2015, bankruptcy courts have seen a steady flow of oil and gas bankruptcies — totaling around $106.8 billion in aggregate debt[1] — with no slowdown in sight.[2] These cases bring along the complex transactions common in the industry, governed by differing state laws and raising novel issues under the Bankruptcy Code. One such issue is the application of 11 U.S.C. § 541(b)(4)(A) to oil and gas agreements.

Although 11 U.S.C. § 365(a) allows for rejection of executory contracts, determining whether a contract is, in fact, executory can be challenging. As illustrated by a recent Second Circuit case, whether an oil and gas gathering agreement can be fully rejected as an executory contract depends on the state law governing the dispute and the relationship of the covenants to real property.