Emory Bankruptcy Developments Journal


Drew Vermette


The federal courts of appeals are split over whether an order denying confirmation of a reorganization plan is final or interlocutory for the purpose of appeal. Congress and the Supreme Court have given little insight as to how to interpret 'finality' within 28 U.S.C. § 158(d)(2). This uncertainty has caused courts to perform fact-intensive inquiries that focus little on text and heavily on policy. This Comment analyzes these policy arguments and offers an explanation for why a flexible interpretation should be uniformly implemented throughout the circuits. The majority of circuits interpret 28 U.S.C. § 158(d)(2) to read that the denial of a reorganization plan is an interlocutory order, and therefore, not final for the purpose of appeal. However, in the interest of judicial economy and the prevention of harm, courts should interpret orders denying confirmation of reorganization plans as final for the purpose of appeal.