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Kenneth A. Listwak, left, and Francis J. Lawall, right, of Pepper Hamilton. Kenneth A. Listwak, left, and Francis J. Lawall, right, of Pepper Hamilton.

In complex Chapter 11 cases, practitioners often encounter legal issues that extend well beyond the Bankruptcy Code. The FirstEnergy bankruptcy case, which ultimately was decided by the U.S. Court of Appeals for the Sixth Circuit (Federal Energy Regulatory Commission v. FirstEnergy Solutions, (In re FirstEnergy Solutions), Case No. 18-3897 (6th  Cir. Dec. 12, 2019)) is a good example of how a business failure led to a bankruptcy case which directly impacted the energy market, the federal regulation of that market, and the harmonizing of such regulations against the Bankruptcy Code’s  goal of providing a “fresh start” to debtors. Ultimately, when faced with these competing interests, the Sixth Circuit exercised a balanced approach in an effort to ensure that policy from all sides was fairly implemented.

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