In some quarters there has been concern that the U.S. Supreme Court’s unanimous opinion (authored by Justice Ketanji Brown Jackson), in MOAC Mall Holdings v. Transform Holdco, 598 U.S. __, 143 S. Ct. 927 (2023), creates uncertainty for purchasers of assets from bankruptcy estates. The Supreme Court’s holding in MOAC Mall Holdings was that 11 U.S.C. Section 363(m), which limits the impact of appeals of unstayed bankruptcy court sale orders, is not jurisdictional because it does not satisfy the “clear-statement principle” and, thus, it does not preclude all appellate review.

Despite the concerns that have been raised, the authors believe the effects of this decision are limited and should not create uncertainty for buyers of debtor assets, as discussed more fully below.

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