Post Stern v. Marshall: Navigating Uncertainties in Bankruptcy Claims Litigation

Description

Since the Stern v. Marshall ruling, a wide range of federal courts have weighed in on the scope of the decision. Over the last year, federal circuit courts have begun adding their views and creating binding precedent for lower courts to follow. While some guidance has emerged, the circuit court rulings are in some respects inconsistent, leaving even the core/non-core dichotomy of bankruptcy proceedings murky.

The Supreme Court recently granted certiorari in Executive Benefits Insurance Agency v. Arkison to resolve a circuit split over whether litigants in a fraudulent conveyance action can waive the right to an Article III tribunal and allow the bankruptcy court to adjudicate the issue.  The Supreme Court will also consider whether a bankruptcy court may ever issue proposed findings of fact and conclusions of law (rather than entering a final order) on matters that statutorily fall within the bankruptcy court's core jurisdiction.

One of the most litigated issues post-Stern is the authority of bankruptcy courts to adjudicate fraudulent transfers and preferences actions against non-creditors. The issue is particularly relevant in Ponzi clawback litigation where defendants must decide whether to transfer the case to the district court.

Listen as our authoritative panel of bankruptcy practitioners guides you through post-Stern case law developments and the impact of Stern on bankruptcy claims litigation.