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Third Circuit’s Mootness Debate Avoids Reversal of Confirmation Order
The Third Circuit, in a complicated five-year old case, avoided the merits of two groups of appeals from an order confirming the debtor’s reorganization “Plan.” In re Boy Scouts of America (BSA), 2025 WL 1377408 (3d Cir. May 13, 2025). The majority used statutory mootness, while a concurring judge would have used equitable mootness to dodge the issue of nonconsensual third-party releases in the Plan and Confirmation Order.
Two groups of claimant-appellants (A and B” sought to “reverse the Confirmation Order and vacate the Plan in its entirety.” Id., at *9. Because the Plan’s confirmation order “contains the authorization of the sale of [the debtor’s] insurance policies,” said the court’s majority, these appeals “would reverse … an authorization made pursuant to [Bankruptcy Code] §363(b),” a result barred by Code §363(m) (good-faith purchaser of property protected from reversal on appeal of sale order unless order stayed). In short, said the majority, A and B’s appeals were taken “from an authorization of the sale,” when “the purchase was made in good faith,” and when “the sale was not stayed.” Id., at *7, quoting In re Energy Future Holdings, 949 F. 3d 806, 821 (3d Cir. 2020). A and B’s appeals “would necessarily affect the sale’s validity,” requiring their appeals to be dismissed as statutorily moot.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.