Predicting the Winners in Harris v. Viegelahn and Bullard v. Blue Hills Bank

The Supreme Court heard two bankruptcy cases on Wednesday. The first case, Harris v. Viegelahn, asks whether, when a debtor in good faith converts a bankruptcy case to Chapter 7 after confirmation of a Chapter 13 plan, undistributed funds held by the Chapter 13 trustee are refunded to the debtor (as the Third Circuit held in In re Michael), or distributed to creditors (as the Fifth Circuit held below).

Figure 1.

Slide1

As Figure 1 shows, the total question count favors the Respondent (Viegelahn), who received 12 fewer questions than the Petitioner (Harris).  The question count by Justice also favors the Respondent. Four Justices asked the Respondent fewer questions (Roberts, Scalia, Kennedy, Ginsburg).  Only two Justices asked the Petitioner fewer questions (Sotomayor and Kagan).  Justice Breyer asked each side the same number of questions.  Justices Alito and Thomas asked no questions.  Based on the question counts, I predict a victory for the Respondent (Viegelahn).

The second case, Bullard v. Blue HIlls Bank, asks whether an order denying confirmation of a bankruptcy plan is appealable.

Figure 2.

Slide2

As Figure 2 shows, the total question count favors the Respondent (Blue Hills Bank), which received 25 fewer questions than the Petitioner’s side (including the Solicitor General as amicus supporting the Petitioner).  Even discounting the fact that the Petitioner’s side had two attorneys arguing (which might inflate the question count somewhat), even the 12 question differential between just the Petitioner and the Respondent is significant (especially considering that Petitioner had 10 minutes less for oral argument).   The question count by Justice also favors the Respondent.  Five Justices asked the Respondent fewer questions (Roberts, Kennedy, Ginsburg, Breyer, Sotomayor).  Based on these numbers, I predict a victory for the Respondent (Blue Hills Bank).

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