New opinion on appeal waiver

In re: Odyssey Contracting Corp.—civil—affirmance—Ambro

[Disclosure: I assisted counsel for the appellant as a consultant prior to oral argument.]

The Third Circuit today held that a party waived its right to appeal a bankruptcy court ruling under the terms of a written stipulation it signed, even though the stipulation was silent as to the parties’ right to appeal. One side had argued that any appellate waiver had to be express, while the other side argued that, to the contrary, the intention not to waive the right to appeal had to be express. The court accepted the latter argument:

a party that agrees to resolve and end a case—and thus gives up its right to press its claims or defenses in exchange for finality—should not be left guessing whether the opposing party can appeal. Rather, the party seeking to appeal must make its intent to do so clear at the time of the stipulation.

Joining Ambro were Smith and McKee. Arguing counsel were Chris Georgoulis of New York for the appellant and Charles Fastenberg of Duane Morris for the appellees.