Credit Suisse v. Lattig et al

Filing 25

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 20 appellants' motion for leave to appeal be, and the same hereby is, GRANTED. Signed by Judge James C. Mahan on 11/9/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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In re:

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LAKE AT LAS VEGAS JOINT VENTURE
LLC, et al.,

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Jointly Administered Reorganized Debtors.

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Appeal from Case No. BK-S-08-17814 MKN
Et al.

Case No. 17-CV-1975 JCM

CREDIT SUISSE,

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Appellant(s),

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ORDER

v.
LARRY LATIG,

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Appellee(s).

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Presently before the court is appellants Credit Suisse AG (Cayman Islands Branch) and
Credit Suisse Securities (USA) LLC’s motion for leave to appeal memorandum decision and order
regarding indemnification obligations and supplemental order thereto. (ECF No. 20). Appellee
Larry Lattig, acting as creditor trustee of the LLV Creditor Trust, filed a consent response (ECF
No. 23), to which interested parties Claymore Holdings, LLC, Highland Floating Rate
Opportunities Fund, and NexPoint Credit Strategies Fund joined (ECF No. 24).
I.

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James C. Mahan
U.S. District Judge

Facts
The parties are familiar with the facts of the case and the underlying bankruptcy court

orders, and appellee does not dispute appellants’ description thereof, which is contained in
appellants’ motion. See (ECF No. 20).
...

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II.

Legal Standard

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28 U.S.C. § 158(a)(1) grants federal district courts jurisdiction to hear appeals from final

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judgments, orders and decrees of bankruptcy courts. Id. Subsection (a)(3) of § 158 provides that

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district courts shall have jurisdiction to hear appeals concerning interlocutory orders and decrees

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“with leave of the court.” Id.

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Determination of finality is “different in bankruptcy” as cases often aggregate individual

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controversies, and “Congress has long provided that orders in the bankruptcy cases may be

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immediately appealed if they finally dispose of discrete disputes within the larger case.” See

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Bullard v. Blue Hills Bank, 135 S.Ct. 1686, 1692 (2015); (citing Howard Delivery Svc., Inc. v.

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Zurich Am. Ins. Co., 547 U.S. 651, 657 n.3 (2006)). When orders do not finally dispose of discrete

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issues within the larger case, courts may grant leave to appeal “if the order involves a controlling

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question of law where there is substantial ground for difference of opinion and when the appeal is

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in the interest of judicial economy because an immediate appeal may materially advance the

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ultimate termination of the litigation.” In re Price, 79 B.R. 888, 889 (9th Cir. B.A.P. 1987) (citing

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28 U.S.C. § 1292(b)).

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III.

Discussion

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Appellants present four questions on appeal:

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(1) Whether the Bankruptcy Court erred in determining that Hooper applies to the
Indemnification Clause for claims between Indemnitees regardless of whether
such Indemnitees are parties to the 2007 Credit Agreement;
(2) Assuming that the Court properly determined that Claymore was a party to the
2007 Credit Agreement for purposes of Hooper, whether the Bankruptcy Court
erred in determining under Hooper that the language of the Indemnification
Clause was insufficiently unequivocal to apply to claims between parties to the
2007 Credit Agreement;
(3) Whether the Bankruptcy Court erred in determining that Hooper applies to limit
the Indemnification Clause where the Borrowers are not parties to the Claymore
Litigation; and
(4) Whether the Bankruptcy Court erred in concluding that Pre-Petition Lenders
who failed to timely object to Phase I of the Indemnification Motion by the
objection deadline imposed by the Bankruptcy Court are permitted to object to
the amount of Credit Suisse’s Indemnification Claims in Phase II.

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(ECF No. 20 at 17).

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Appellants contend that each of the questions presented upon appeal involves controlling

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issues of law to which there are substantial bases for differences of opinion. (ECF No. 20).

James C. Mahan
U.S. District Judge

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Appellants further contend that resolution of these questions of law will materially advance the

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ultimate termination of the litigation. (ECF No. 20). Although appellees disagree with the

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conclusions offered by appellants on the questions presented, appellees agree that the questions

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presented meet the standard articulated above for appellate review. (ECF No. 23).

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Upon review, the court agrees with the parties. Although the orders are not final orders,

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the questions presented involve controlling issues of law to which there are substantial bases for

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differences of opinion.

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materially advance the ultimate termination of the litigation. Therefore, the court will grant leave

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to appeal the bankruptcy court decision, order, and supplemental order. See In re Price, 79 B.R.

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at 889.

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IV.

Resolution of questions regarding the indemnification clause will

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that appellants’ motion for

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leave to appeal (ECF No. 20) be, and the same hereby is, GRANTED.
DATED November 9, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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