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Third Time’s the Charm? Ultra Petroleum Make-Whole Dispute is Once Again Headed to the Fifth Circuit.

On Monday, November 30, Bankruptcy Judge Marvin Isgur approved a request by Ultra Petroleum and its affiliated debtors that he certify his October 26, 2020 memorandum opinion for direct review by the United States Court of Appeals for the Fifth Circuit.  That decision, which we recently summarized here, held that certain creditors are entitled to allowance and payment of make-whole claims, and that post-petition interest is calculated at the contractual default rate.  No creditor or other party in interest opposed the request for direct appeal.

Section 158(d) of Title 28 reflects a Congressional judgment that an expedited, direct appeal to the federal courts of appeals (i.e., without first appealing to the District Court) is appropriate if any one of the following conditions is satisfied:  (1) the order involves “a question of law as to which there is no controlling decision . . .  or involves a matter of public importance”; (2) the order “involves a question of law requiring resolution of conflicting decisions”; or (3) an immediate appeal “may materially advance the progress of the case or proceeding.”[1] 

Judge Isgur concluded that at least two of these criteria were met.  First, he determined that the Fifth Circuit itself has concluded that “there isn’t controlling authority on the questions they remanded, or they wouldn’t have sent them back to me” (i.e., as they did in Ultra II).   And while he expressed some skepticism that there are “conflicting decisions” on these questions, he had no difficulty concluding that the third criterion was satisfied, too.  “I do believe that an immediate appeal would materially advance the progress in this case,” he said, adding, “it’s time to get this done.” 

We intend to monitor the appeal closely and will provide further updates as it progresses. 


[1] 28 U.S.C. §158(d)(2)(A).