Jenner & Block

“Determining Party Consent to a Bankruptcy Judge’s Authority to Decide ‘Stern’ Claims,” New York Law Journal

In this article, Jenner & Block Partners Rich Levin and Patrick J. Trostle and Associate Carl N. Wedoff examine the implications of this year’s US Supreme Court decision in Wellness International Network v. Sharif, a case the firm won on behalf of client Wellness.  In Wellness, the Court addressed an unresolved question from its decision in Stern v. Marshall:  whether parties’ consent permits a bankruptcy judge to enter a final order or judgment on a claim otherwise requiring Article III adjudication.  The Court answered in the affirmative.   The authors summarize the decision in Wellness, survey subsequent lower court decisions and proposed amendments to the Federal Rules of Bankruptcy Procedure that will require parties in adversary proceedings to affirmatively express their consent or nonconsent, and identify five factors that bear on consent analysis in practice.