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Chapter 11 101
Bankruptcy Appeals
Contributing Editors:
Prof. John D. Ayer
University of California at Davis; Chico, Calif.
jdayer@ucdavis.edu
Michael L. Bernstein
Arnold & Porter LLP; Washington, D.C.
michael_bernstein@aporter.com
Jonathan Friedland
Kirkland & Ellis LLP, Chicago
jonathan_friedland@chicago.kirkland.com
Editors Note: This is the last installment of
our Chapter 11 - 101 column. It deals
with appeals from bankruptcy court
decisions. After a short break, we will move
to Chapter 11 - 201, a new column that
will deal with issues at the intersection of
bankruptcy law and other areas of law
(environmental, tax, securities, etc.).
The American Bankruptcy Institute 44 Canal Center Plaza, Suite 404, Alexandria, VA 22314-1592 703 739 0800
obtained in the case of an appeal from a postpetition financing order under 364 or an asset
sale order under 363 as a result of statutory
provisions.7
Note that certain types of bankruptcy
court orders are automatically stayed for 10
days, unless the bankruptcy court orders
otherwise. These include orders authorizing the
use, sale or lease of property (Rule 6004(g)),
orders authorizing the assignment of executory
contracts (Rule 6006(d)) and an order
confirming a chapter 11 plan (Rule 3020(e)).
If you cannot obtain a stay, an
alternative may be to ask the appellate court
for an expedited briefing schedule and
expedited treatment of the appeal. Cases
where this is justified obviously are limited,
but if there is a true need and demonstrable
prejudice would result from things proceeding at the normal speed, you should request
an expedited appeal.
Soon after the appeal is filed, the
parties designate the record (Rule 8006) and
the record is then transmitted from the
bankruptcy court to the BAP or district court.
The briefing schedule and other rules
concerning briefs and oral arguments are
found in Rules 8009, 8010 and 8012. They
provide that the appellant files a brief within
15 days after the appeal is docketed, the
appellee files its brief within 15 days after
the appellants brief is served, and then the
appellant has 10 days to reply. This schedule
is sometimes modified by court order. The
BAP or district court has discretion to hold
oral argument or not.8
A party can take further appeal from
the BAP or district courts decision to the
court of appeals. BAP and district court
decisions on bankruptcy appeals are
automatically stayed for 10 days in order to
facilitate this.9 If you want a further stay, you
need to seek it under Rule 8017(b). These
appeals are governed by the Federal Rules of
Appellate Procedure and, as a result, the
time limits, briefing rules, etc., differ.
And if you are not happy with the
appeals courts decision, you can always
seek certiorarialthough the chances of it
being granted arent very good.
The American Bankruptcy Institute 44 Canal Center Plaza, Suite 404, Alexandria, VA 22314-1592 703 739 0800