As we discussed in a recent post on Executive Benefits Insurance Agency v. Arkison, the United States Supreme Court is preparing to address the constitutional limits on bankruptcy court authority in fraudulent transfer litigation. In granting certiorari in Arkison, the Supreme Court agreed to consider two questions:

  1. Can a bankruptcy court issue proposed findings of fact and conclusions of law in a “core” bankruptcy matter, such as a fraudulent transfer action under section 548 of the Bankruptcy Code?
  2. Can litigant conduct constitute “consent” to bankruptcy court jurisdiction on matters otherwise required to be decided by Article III courts? If so, in what circumstances?

The Supreme Court has now scheduled oral argument for January 14, 2014. A written opinion should be issued no later than the end of June, although an earlier decision is likely.

Briefing in the case is already underway. Not surprisingly, given the case’s potential to shake up the bankruptcy litigation world, a number of non-parties to the case have already submitted amicus briefs.

We will continue to post any noteworthy updates on the case and expect to have a substantive analysis of the oral argument shortly after January 14.