After the Supreme Court affirmed a Ninth Circuit ruling in
Executive Benefits Ins. Agency v. Arkison on June 9 that permits bankruptcy judges to make recommendations in certain matters that may later be adopted by a federal court, but side-stepped the issue of whether Article III of the Constitution permits a bankruptcy court to make final rulings in that matter if the parties consent,
Dennis J. Nolan, Chair of Anderson Kill's Bankruptcy and Restructuring Group, commented as follows in Law360:
Although the Supreme Court told us Stern was limited to its holding, its decision today in EBIA demonstrates that Stern was really a jurisdictional game-changer. And the fact that the court left open the hotly-debated post-Stern question of implied consent where the bankruptcy court lacks constitutional authority is perhaps a signal that this court supports the narrowest interpretation of bankruptcy court jurisdiction.
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