Nonfinal Finality: The Result Of A Flexible Standard

Law360, New York ( August 31, 2016, 12:38 PM EDT) -- As the U.S. Supreme Court recently reminded us in Bullard v. Blue Hills Bank, not all orders in bankruptcy cases are immediately appealable as a matter of right. Only those orders deemed sufficiently "final" may be appealed without leave under 28 U.S.C. § 158(a). In light of the numerous parties and controversies involved in a typical bankruptcy case, determining whether an order is "final" can be complicated affair. Thus, finality in bankruptcy is a "flexible standard" applied to discrete disputes that arise within the larger case. See generally 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3926.2 (collecting examples of final and nonfinal orders). That flexibility, however, has led to disparate results....

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