In re: Boy Scouts of America and Delaware BSA LLC — Entry #271: ECF FILER: Petition filed by Appellant Lujan Claimants for Rehearing before original panel and the court en banc

Case: 23-1664    Document: 271-1        Page: 1   Date Filed: 05/27/2025


                                   Case No. 23-1664

                IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                _____________________________________________
            BOY SCOUTS OF AMERICA and DELAWARE BSA, LLC

                                        Debtors.
                                LUJAN CLAIMANTS

                                       Appellants,

                                              v.

                           BOY SCOUTS OF AMERICA, et al
                                       Appellees.
                          Case No. 23-1664
__________________________________________________________________

                        Appeal from the United States
      District Court, District of Delaware, Case No. 22-cv-01237-RGA 1
__________________________________________________________________

    LUJAN CLAIMANTS’ PETITION FOR REHEARING EN BANC
__________________________________________________________________

LOIZIDES, P.A.                            LUJAN & WOLFF LLP
Christopher D. Loizides                   Delia Lujan Wolff
1225 King Street, Suite 800               238 Archbishop Flores St., Suite 300
Wilmington, DE 19801                      Hagatna, Guam 96910
Telephone: (302) 654-0248                 Telephone: (671) 477-8064/5

                       Attorneys for Appellants Lujan Claimants
       1
                Case number 22-cv-01237-RGA is a lead case consolidated with District Court
cases 22-cv-01237, 22-cv-01238, 22-cv-01239, 22-cv-01240, 22-cv-01241, 22-cv-01242, 22-cv-
01243, 22-cv-01244, 22-cv-01245, 22-cv-01246, 22-cv-01247, 22-cv-01249, 22-cv-01250, 22-cv-
01251, 22-cv-01252, 22-cv-01258, and 22-cv-01263. Lujan Claimants’ appeal is docketed in the
District Court at 22-cv-01258-RGA.


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                            TABLE OF CONTENTS


TABLE OF AUTHORITIES                                                             ii
RULE 35.1 STATEMENT OF COUNSEL                                                   1
INTRODUCTION                                                                     3
BACKGROUND                                                                       4
ARGUMENT                                                                         7
  I. The majority’s decision to apply §363(m) to plan sales
       conflicts with Third Circuit precedent and places this Court
       in the minority among circuits considering the question.                  7
   A.      Expanding §363(m) to apply to plan sales conflicts with this
           Court’s prior decisions.                                              7
   B.      By applying §363(m) to the Confirmation Order, the majority
           deepens a circuit split and places this Court in the minority.        9
  II. Dismissal of the appeal conflicts with the Supreme Court’s
       decision in MOAC Mall.                                                    11
  III. En banc review is necessary to address whether §363 can be
       used to allow into a reorganization plan and protect from
       appellate review unlawful provisions including nonconsensual
       third-party releases invalidated in Purdue.                               13
  IV. The majority’s finding of related-to jurisdiction over
       claims between nondebtors conflicts with Third Circuit
       precedent and is unsupported by the record.                               15
JOINDER                                                                          18
CONCLUSION                                                                       18
COMBINED CERTIFICATIONS                                                          20
EXHIBIT 1: PANEL OPINION
EXHIBIT 2: JUDGMENT


                                          i


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                                      TABLE OF AUTHORITIES

Cases

Cinicola v. Scharffenberger, 248 F.3d 110 (3d Cir. 2001) ............................... 1,8,13
Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024) ............................ 1,3,13,15
In re Bardos, No. CC-13-1316-PaKuBl, 2014 WL 3703923
  (B.A.P. 9th Cir. July 25, 2014) ..........................................................................9,10
In re Combustion Eng’g, Inc., 391 F.3d 190 (3d Cir. 2005) ....................... 1,3,15,16
In re Energy Future Holdings, 949 F.3d 806 (3d Cir. 2020) ..................................1,8
In re Fieldwood Energy LLC, 93 F.4th 817 (5th Cir. 2024) ...................................10
In re ICL Holding Co., 802 F.3d 547 (3d Cir. 2015) ........................................ 1,7,14
In re Joshua Slocum Ltd., 922 F.2d 1081 (3d Cir. 1990) ..........................................9
In re Made in Detroit, Inc., 414 F.3d 576 (6th Cir. 2005) .......................................10
In re One2One Commc’ns, LLC, 805 F.3d 428 (3d Cir. 2015) ..............................12
In re PWS Holding Corp., 228 F.3d 224 (3d Cir. 2000).........................................1,7
In re Texas Extrusion Corp., 844 F.2d 1142 (5th Cir. 1988)...................................10
Miami Ctr. Ltd. P’ship v. Bank of New York, 838 F.2d 1547 (11th Cir. 1988) .....10
MOAC Mall Holdings LLC v. Transform Holdco LLC,
  598 U.S. 288 (2023) ................................................................................. 1,3,11,12
Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir 1984) ......................................... 1,3,15


Statutes

11 U.S.C. § 363 .............................................................................. 3,6,7,8,9,12,13,14
11 U.S.C. § 363(b) .................................................................................. 7,8,10,11,13
11 U.S.C. § 363(c) .................................................................................. 7,8,10,11,13
11 U.S.C. § 363(l) ......................................................................................................7
11 U.S.C. § 363(m) ................................................................ 3,7,8,9,10,11,12,13,14,
11 U.S.C. § 363(o) .....................................................................................................7
11 U.S.C. § 364(e) ................................................................................................9,12
11 U.S.C. § 365 ..........................................................................................................9
11 U.S.C. § 1123(a)(5)(B) .........................................................................................9


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L.A.R. 35.1 STATEMENT OF COUNSEL

      I express a belief, based on a reasoned and studied professional judgment, that

the panel decision is contrary to decisions of the United States Court of Appeals for

the Third Circuit and the Supreme Court of the United States, and that consideration

by the full court is necessary to secure and maintain uniformity of decisions in this

court, i.e., the panel’s decision is contrary to the decisions of this Court in In re PWS

Holding Corp., 228 F.3d 224 (3d Cir. 2000), In re ICL Holding Co., 802 F.3d 547

(3d Cir. 2015), In re Energy Future Holdings, 949 F.3d 806 (3d Cir. 2020), Cinicola

v. Scharffenberger, 248 F.3d 110 (3d Cir. 2001), In re Combustion Eng’g, Inc., 391

F.3d 190 (3d Cir. 2004), and Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir 1984), and

the Supreme Court in MOAC Mall Holdings LLC v. Transform Holdco LLC, 598

U.S. 288 (2023), and that this appeal involves a question of exceptional importance,

i.e., whether 11 U.S.C. §363 can be used as a backdoor to allow into a plan and

shield from appellate scrutiny nonconsensual third-party releases which the Supreme

Court found unlawful in Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024).

                                         /s/ Christopher D. Loizides
                                         Christopher D. Loizides
                                         Loizides, P.A.
                                         1225 North King Street, Suite 800
                                         Wilmington, DE 19801
                                         Phone: 302.654.0248
                                         Email: loizides@loizides.com

                                         and


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                             LUJAN & WOLFF LLP

                             /s/ Delia Lujan Wolff
                             Delia Lujan Wolff
                             Suite 300, DNA Bldg.
                             238 Archbishop Flores St.
                             Hagatna, Guam 96910
                             Phone: (671) 477-8064/5
                             Facsimile: (671) 477-5297
                             Email: dslwolff@lawguam.com

                             Attorneys for Lujan Claimants


                                                                     2


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                                INTRODUCTION

      The majority’s decision to dismiss this appeal of plan confirmation as

statutorily moot “stretches” 11 U.S.C. §363(m) in contravention of that statute’s

clear indication that it does not apply to plan sales, thereby conflicting with this

Court’s earlier decisions recognizing the difference between §363 sales and plan

sales and deepening a circuit split while placing this Court in the minority. In doing

so, the majority preserves and bars review of plan provisions that the Supreme Court

in Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024), found unlawful less than

one year ago—and, as the concurrence presciently observes, opens a wide door to

further misuse of §363(m). Dismissal of the appeal also conflicts with the Supreme

Court’s decision in MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U.S.

288 (2023), holding that §363(m) takes as a given that courts will exercise

jurisdiction over covered authorizations and that §363(m) only constrains the effect

of successful reversal or modification of covered authorizations.

      The majority’s finding of related-to jurisdiction based independently on

shared insurance and automatic contractual indemnification radically broadens

bankruptcy courts’ jurisdiction over third-party claims against nondebtors, on the

heels of Purdue’s narrowing bankruptcy courts’ power over these claims. Ignoring

both the holding in In re Combustion Eng’g, Inc., 391 F.3d 190 (3d Cir. 2004), and

this Court’ seminal test in Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir 1984), the


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majority finds related-to jurisdiction despite a lack of evidence in the record to

support either BSA’s shared insurance with all nondebtors at all relevant times and

BSA’s automatic indemnification liability as to nondebtors.1

                                 BACKGROUND

      Lujan Claimants are 75 survivors of child sexual abuse in Guam who hold a

unique position in this case in the strength of their claims, the extent to which those

claims were vetted, and available third-party sources of recovery. Most were boy

scouts. All were abused in scouting, the earliest in 1955 and the latest in 1981. After

Guam eliminated its statute of limitations for past child sexual abuse in 2016, all

Lujan Claimants, except two, filed lawsuits against the Boy Scouts of America

(“BSA”) for their abuse. In fact, more than 25% of the 275 lawsuits pending against

BSA at the time BSA filed for bankruptcy in 2020 are Lujan Claimants’ lawsuits. 2

Prepetition, at least 70 Lujan Claimants were deposed by BSA and engaged in

extensive discovery. All Lujan Claimants have direct action claims against insurers

and independent, non-derivative claims against other nondebtors, including local

councils, chartered organizations and non-chartered Roman Catholic Entities. Lujan

Claimants each value their claims against nondebtors to be worth millions of dollars


1
  This petition focuses on issues where the majority opinion conflicts with Third
Circuit precedent. Lujan Claimants do not waive but reserve any and all other
arguments in any petition for writ of certiorari.
2
  This is unlike more than 82,000 other abuse Survivors who filed proofs of claim in
BSA’s bankruptcy case and had no prepetition lawsuits pending against BSA.
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but, under the plan, will receive no more than a tiny fraction of that. Their claims

against nondebtors were stolen for the benefit of the Settling Insurers and other

nondebtors who paid nothing.

          Over the objections of Lujan Claimants and others, the Bankruptcy Court

confirmed a plan of reorganization on September 8, 2022, that provides for the

nonconsensual release and injunction of third-party claims against nondebtors,

unprecedented in breadth. In addition to BSA, more than 250 local councils, over

100,000 chartered organizations, an unknown number of nonchartered-Roman

Catholic Entities, and numerous insurers are discharged of liability for claims of

Survivors alleging child sexual abuse in scouting. Lujan Claimants appealed the

nonconsensual third-party releases and injunctions 3 in BSA’s plan, among other plan

errors.

         Included as part of the plan are insurance policy buybacks which involve the

denominated “sale” by BSA of its liability insurance policies as well as local council

liability policies in which BSA has no interest. As the “sale” or cancellation of an

insurance policy cannot relieve the insurer of liability for asserted claims, the “sale”

of the policies did not do the Settling Insurers much good. What they were really

after was not estate assets (i.e., BSA policies)—what §363(m) protects on its face—

but the Survivors’ claims against them—claims that are indisputably not estate


3
    “Releases” refers both to the nonconsensual third-party releases and injunctions.
                                                                                        5


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property. Other nondebtors such as local councils, chartered organizations, and non-

chartered Roman Catholic Entities (who are not insured under any of the purchased

policies) also benefit from the releases.      The “sales” were approved by the

Bankruptcy Court in a single order, i.e., the order confirming the plan (“the

Confirmation Order”). No separate motion was ever filed under § 363.

      Lujan Claimants timely appealed to the District Court, which affirmed. Lujan

Claimants repeatedly moved for stays of the Confirmation Order, which were denied

except for a 6-day stay by the Supreme Court. After this Court denied stay, the plan

purportedly went into effect on April 19, 2023. Several months later, BSA and

Settling Insurers filed motions to dismiss the appeals based on equitable and

statutory mootness. A three-judge panel of this Court refused to grant dismissal on

either basis, stating that “[t]he Appellees’ arguments leave us unpersuaded at this

preliminary stage that equitable or statutory mootness apply in the particular

circumstances of this case.” ECF 163 at 3. No material changes have occurred since

then to warrant the majority’s dismissal for statutory mootness. The only significant

event occurred at the Supreme Court six months later.

      On June 27, 2024, the Supreme Court issued its landmark opinion in Purdue,

holding that the Bankruptcy Code does not authorize a bankruptcy court to grant

nonconsensual third-party releases—and presumably putting an end to this abusive

practice. Yet, less than one year later, the majority issued a decision dismissing this


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appeal as statutorily moot and preserving the same nonconsensual third-party

releases invalidated in Purdue. A Judgment was filed May 13, 2025.

                                     ARGUMENT

   I.      The majority’s decision to apply §363(m) to plan sales conflicts with
           Third Circuit precedent and places this Court in the minority among
           circuits considering the question.

        A. Expanding §363(m) to apply to plan sales conflicts with this Court’s
           prior decisions.

        This Court has long recognized that §363 sales are outside a plan of

reorganization. In re PWS Holding Corp., 228 F.3d 224, 229-30 (3d Cir. 2000) (Ҥ

363 … governs the sale of assets outside of the reorganization plan”); In re ICL

Holding Co., 802 F.3d 547, 549 (3d Cir. 2015) (§363 sale is “outside a plan of

reorganization”). This is consistent with the text of §363, which Judge Rendell

emphasized in her concurrence “distinguishes between sales under § 363(b) and (c)

and sales under a plan,” (Concurring Op. at 4), and provides “clear indication that

[§363(m)] does not apply to sales in reorganization plans,” (id. at 2.).              The

concurrence explained:

        Subsection § 363(l) applies to the “use[,] sale, or lease of property” that
        occurs “under subsection (b) or (c) of [§363] or a plan under chapter 11
        … of this title.” By contrast, §363(m) applies only to a sale or lease
        authorized “under subsection (b) or (c) of [§ 363].” Similarly, § 363(o)
        applies to “a sale under [§363],” and has been interpreted (albeit, in
        decisions that do not bind this Court) to apply to § 363 sales only, not
        plan sales. Tellingly, the drafters of subsection (o) originally
        considered language that would have made the provision applicable to
        a “sale by a trustee or transfer under a plan of reorganization.” In the
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      end, however, Congress adopted narrower language, such that the
      provision applies to only a “sale under this section,” and not a “transfer
      under a plan of reorganization.” Similarly, the drafters of § 363(m)
      could have considered (and adopted) language that brought plan sales
      within its ambit. Instead, § 363(m) narrowly applies to § 363(b) and
      (c) sales, not plan sales. As the majority notes, “the inclusion of
      language in one section of a statute, but omission of it in another,
      generally ‘convey[s] a difference in meaning[.]’”

(Concurring Op. at 4-5 (internal citations omitted).) The majority’s decision to treat

the insurance policy buybacks—sales entirely within BSA’s plan—as §363 sales

renders Congress’ careful efforts to distinguish between these transactions

meaningless and should not stand.

      The majority’s reliance on In re Energy Future Holdings (“EFH”), 949 F.3d

806 (3d Cir. 2020), and Cinicola v. Scharffenberger, 248 F.3d 110 (3d Cir. 2001), to

apply §363(m) to the Confirmation Order is misplaced because those cases involved

the bankruptcy court first issuing an order preliminarily approving a §363 sale and

then a second order authorizing the sale. EFH, 949 F.3d at 819-20; Cinicola, 248

F.3d at 122. 4 In those cases, §363(m) applied to the appeal of the second order

because the second order was “inextricably intertwined” with the first order

approving the sale and the bankruptcy court clearly intended the second order to

operate in conjunction with the first order. EFH, 949 F.3d at 819-20; Cinicola, 248


4
  This Court in EFH placed significant reliance on its prior holding in Cinicola. But
it may be noted that Cinicola itself involved two separate orders, neither of which
were confirmation orders. In any case, there was only one order here—a
confirmation order, not a sale order.
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F.3d at 125-26.    Here, there is no separate pre-confirmation §363 order first

approving the policy buybacks; the sales were approved only by the Confirmation

Order. Therefore, the Confirmation Order is not inextricably intertwined with any

§363 sale order and the Bankruptcy Court did not clearly intend the Confirmation

Order to operate in conjunction with any other sale order, which does not exist.

Those cases do not support the majority’s decision.

      Importantly, this Court previously recognized that only two provisions of the

Bankruptcy Code—11 U.S.C. §§363(m) and 364(e)—specifically require a stay

pending appeal. In re Joshua Slocum Ltd., 922 F.2d 1081, 1085 (3d Cir. 1990).

Acknowledging that §363(m) does not apply to assignments of leases under 11

U.S.C. §365, this Court “decline[d] to interpret the mootness principles in such a

way that would, in effect, create a third situation where parties are required to seek

a stay, i.e., the assignment of leases under §365.” Id. By extending §363(m)’s

protection to plan confirmation, the majority departs from precedent and does

exactly what this Court earlier declined to do.

      B. By applying §363(m) to the Confirmation Order, the majority deepens
         a circuit split and places this Court in the minority.

      Most circuits considering the question have held or strongly suggested that

§363(m) does not apply to plan sales. The Ninth Circuit has held that §363(m) did

not apply to a sale under a plan because such sales “are not subject to §363, but are

authorized by [11 U.S.C. §1123(a)(5)(B)].” In re Bardos, No. CC-13-1316-PaKuBl,
                                                                                    9


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2014 WL 3703923, at *9 (B.A.P. 9th Cir. July 25, 2014). The Eleventh Circuit has

held that “§ 363(m) … applies only to the sale of the debtor’s property by the trustee

pursuant to §363(b) or (c). Section 363(m) does not apply where the debtor’s assets

have been sold . . . pursuant to a plan of liquidation.” Miami Ctr. Ltd. P’ship v. Bank

of New York, 838 F.2d 1547, 1553 (11th Cir. 1988). Although declining at that time

to decide whether a plan sale can be shielded by §363(m), the Fifth Circuit has

doubted whether §363 applies to a sale of property pursuant to a reorganization plan

since “[t]here is a definite implication that [§363(b) and (c)] concern the trustee’s

authority during the administration of the estate and not at the final disposition of

the property of the estate pursuant to a plan of reorganization.” In re Texas Extrusion

Corp., 844 F.2d 1142, 1165 (5th Cir. 1988).

      Rather than following this Court’s earlier approach to §363, the majority takes

this Court down a path joined only by the Sixth Circuit. Lujan Claimants have found

that only the Sixth Circuit has explicitly held that §363(m) applies to a plan sale.5

In re Made in Detroit, Inc., 414 F.3d 576, 582-83 (6th Cir. 2005). However, that

court failed to address §363’s language which clearly distinguishes between §363(b)

and (c) sales and plan sales and provides that §363(m) only applies to §363(b) or (c)

sales. In contrast, Lujan Claimants have raised this textual argument which the


5
 In In re Fieldwood Energy LLC, the Fifth Circuit affirmed a district court’s
dismissal of an appeal of a plan sale as statutorily moot, but it did not specifically
address whether §363(m) applies to plan sales. 93 F.4th 817, 821-25 (5th Cir. 2024).
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concurrence held valid.

   II.     Dismissal of the appeal conflicts with the Supreme Court’s decision in
           MOAC Mall.

         In MOAC Mall, the Supreme Court held that §363(m) does not limit an

appellate court’s adjudicatory capacity, but that it “takes as a given the exercise of

judicial power over any authorization under § 363(b) or § 363(c).” 598 U.S. at 299.

The Supreme Court stated that, “given § 363(m)’s clear expectation that courts will

exercise jurisdiction over a covered authorization, it is surely permissible to read its

text as merely cloaking certain good-faith purchasers or lessees with a targeted

protection of their newly acquired property interest, applicable even when an

appellate court properly exercises jurisdiction.” Id. at 300. Instead of limiting

judicial power, §363(m) is “a mere restriction on the effects of a valid exercise of

that power when a party successfully appeals a covered authorization.” Id. at 303.

And that constraint is “inapplicable where the sale … was made to a bad-faith

purchaser … , or if the sale … is stayed pending appeal, or … if the court does

something other than ‘revers[e] or modif[y]’ the authorization.” Id. at 299.

         MOAC Mall means that §363(m) cannot be invoked to dismiss an appeal. If

there is Article III jurisdiction, appellate courts must hear the appeal on the merits

and reverse, modify, or do something other than reverse or modify. Nothing in

§363(m) mandates that appellate courts first determine as a threshold issue whether

effective relief can be granted without affecting the validity of the sale, before
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hearing the appeal. Unlike the chicken-or-the-egg mystery, it is obvious which must

come first—a successful reversal or modification of a covered authorization,

followed by a “mere restriction on the effects of a valid exercise of that power.”

      In In re One2One Commc’ns, LLC, 805 F.3d 428 (3d Cir. 2015), Judge

Krause expressed similar reasoning. In rejecting the argument that the Bankruptcy

Code “express[es] a policy favoring the finality of bankruptcy decisions” through 11

U.S.C. §§ 363(m), 364(e), and 1127(b),” and that equitable mootness fills a gap in

the Code created by the absence of a provision limiting appellate review of plan

confirmation orders, Judge Krause stated: “By their terms, §§ 363(m) and 364(e)

do not prevent an appellate court from hearing an appeal, or even from granting a

particular remedy; they simply prevent the appellate court’s remedy from affecting

certain transactions.” Id. at 443 (Krause, J., concurring) (emphasis in original).

      The majority opinion dismissing the appeal clearly contravenes MOAC Mall.

Rather than exercise its “unflagging” jurisdiction over the appeal of the

Confirmation Order (which Lujan Claimants maintain is not a covered authorization)

and decide whether to reverse, modify, or do something else, the majority first

focuses on whether certain aspects of §363(m) apply—§363 sale, lack of stay, good

faith purchaser, relief—and then dismisses the appeal when it concludes that certain

relief requested by Lujan Claimants would affect the validity of the insurance policy

buybacks. The majority fails to hear the appeal and then fails to turn to remedy only


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after first hearing the appeal. The majority’s outright dismissal without hearing the

appeal grossly exceeds §363(m)’s “mere restriction on the effects of a valid exercise

of [jurisdiction over a covered authorization]” and is an abdication of Congress’

“clear expectation that courts will exercise jurisdiction over a covered

authorization.”

      If §363(m) applies, whether relief can be fashioned that does not affect the

validity of the sale should be determined by lower courts. See Cinicola, 248 F.3d at

128 (this Court remanding to district court the issue of whether the requested relief

would affect the validity of the §363 transaction). Limited relief is available, e.g.,

providing adequate compensation to Lujan Claimants for their interests in the

policies and proceeds and re-classifying Lujan Claimants. ECF 66 at 61-64, 74-75.

   III.   En banc review is necessary to address whether §363 can be used to
          allow into a reorganization plan and protect from appellate review
          unlawful provisions including nonconsensual third-party releases
          invalidated in Purdue.

      The majority’s dismissal of the appeal as statutorily moot sets a “dangerous

transactional precedent,” (Concurring Op. 10), providing a road map for plan

proponents to protect from appellate review nonconsensual third-party releases

invalidated in Purdue. Under the majority’s reasoning, merely authorizing a sale in

a plan purportedly under §363(b) or (c) and claiming that unlawful plan provisions

such as the nonconsensual third-party releases are integral to the sale are enough to

meet certain requirements for §363(m) to apply.
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      The concurrence rightly concludes that the majority’s approach invites

“mischief” by plan proponents. (Concurring Op. 15.). “So long as a court authorizes

an intra-plan sale under § 363, the other plan provisions are shielded from review,

as they may have conceivably affected the sale price.” (Id. at 9.) As discussed

earlier, this is contrary to the language of §363(m), which clearly indicates it does

not apply to plan sales.

      The majority wrongly suggests that its ruling is “narrow.” (Op. 36.) The

majority’s decision to extend §363(m)’s protection to local councils, chartered

organizations, and nonchartered Roman Catholic Entities “flies in the face” of ICL

Holding Co., where this Court stated that “while § 363(m) aims to make sales of

estate property final and inject predictability into the sale process, we don’t think it

does so at all costs and certainly not for non-purchasers.” 802 F.3d at 554. As none

of these nondebtors are parties to the sales, the majority erroneously expands

§363(m) to bar review of Lujan Claimants’ challenge to the nonconsensual release

of their claims against these nondebtors. Indeed, the majority’s holding could

subject almost any transaction to protection under §363(m). As the concurrence

argues eloquently:

      What happened here goes far beyond what § 363 contemplates. Rather
      than merely protecting the purchaser's “newly acquired property
      interest,” the majority shields from review the non-consensual third-
      party releases that the Supreme Court invalidated in Purdue. This sets
      a dangerous transactional precedent, one that will result in Article III
      courts not having the capacity to review Confirmation Orders if the
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      parties agree to call key intra-plan transactions “sales.” Indeed, today's
      decision relegates the Supreme Court's holding in Purdue to a mere
      plan-drafting guide

      As the majority’s decision revitalizes unlawful releases struck down in

Purdue, rehearing en banc is essential to address this issue of exceptional

importance.

   IV.   The majority’s finding of related-to jurisdiction over claims between
         nondebtors conflicts with Third Circuit precedent and is unsupported
         by the record.

      In determining subject matter jurisdiction over Lujan Claimants’ claims

against nondebtors, the majority failed to apply the test set forth in Pacor, which is

“the seminal test for determining ‘related to’ jurisdiction over third party claims.”

Combustion Eng’g, 391 F.3d at 226. Under the test, if a primary lawsuit between

two nondebtors would have no effect on the debtor’s estate and was at best a mere

precursor to a second lawsuit asserting a potential third-party claim for

indemnification against the debtor, then there is no related-to jurisdiction over the

primary lawsuit. Id. Here, there is at most only the first lawsuit and no second

lawsuit brought by a nondebtor against BSA for indemnification has accrued and,

thus, there can be no related-to jurisdiction over Lujan Claimants’ claims against

nondebtors.

      The majority erroneously found related-to jurisdiction based on the

independent grounds of shared insurance and contractual indemnification. This


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       Case: 23-1664     Document: 271-1        Page: 19   Date Filed: 05/27/2025


conflicts with Combustion Eng’g, where this Court noted that courts finding related-

to jurisdiction over claims against nondebtors based in part on shared insurance

policies have relied not only on extensive record findings regarding the terms and

operation of the subject policies, but also on additional evidence of automatic

liability against the debtor. Id. at 232-33. Here, there were no findings regarding

the terms and operation of each of the policies and there is no evidence of automatic

liability against BSA. Even if there were automatic liability, there are no second

lawsuits filed against BSA for indemnification. Thus, the majority erred in finding

that either shared insurance or contractual indemnification alone may be sufficient

to establish related-to jurisdiction.

      The record does not support the majority’s finding of related-to jurisdiction

based on shared insurance. The table below shows the extent of BSA’s sharing of

insurance with nondebtors, which was only as to insurance policies bought by BSA

(“BSA Insurance”).


 Entity                                 Period of Shared BSA Insurance with BSA

 Local Councils                         1976 to present (except Hartford 1976-1977)

 Chartered Organizations (e.g.,         1976 to present (except Hartford 1976-1977)
 Archbishop of Agana)
 Non-chartered Roman Catholic           Never
 Entities (e.g., Capuchin
 Franciscans)


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      Case: 23-1664     Document: 271-1     Page: 20     Date Filed: 05/27/2025


In fact, the majority found only that “BSA and the nondebtor, would-be defendants

shared liability insurance coverage since at least 1976,” (Op. 31), reflecting that BSA

did not share its insurance with nondebtors prior to 1976. There is no evidence that

BSA ever shared insurance with non-chartered Roman Catholic Entities such as the

Capuchin Franciscans, against whom all but 2 Lujan Claimants have scouting abuse

claims. Also, there is no evidence that BSA was insured under any separate

insurance policies purchased by nondebtors. Therefore, there can be no related-to

jurisdiction over Lujan Claimants’ claims against local councils and chartered

organizations for abuse that occurred before 1976, no related-to jurisdiction over

Lujan Claimants’ claims against non-chartered Roman Catholic Entities, and no

related-to jurisdiction over Lujan Claimants’ claims against insurers that separately

insured any nondebtors, based on shared insurance.

      The record also does not support the majority’s finding that BSA had non-

contingent, automatic indemnity obligations.       The majority erroneously found

related-to jurisdiction based on indemnity obligations between BSA and nondebtors

that automatically result in indemnification liability against BSA. (Op. 31-32.) The

majority did not address any of the numerous arguments raised by Lujan Claimants

against BSA’s automatic indemnification liability, such as the lack of any prepetition

agreement by BSA to indemnify local councils, BSA’s admission in its solicited

Disclosure Statement openly denying indemnification liability as to chartered


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       Case: 23-1664     Document: 271-1    Page: 21   Date Filed: 05/27/2025


organizations, BSA’s active pursuit (through the filing of a proof of claim and

amended proof of claim) for indemnification and contribution for child sexual abuse

claims in Guam against bankrupt chartered organization Archbishop of Agana,

BSA’s history of settling scouting abuse claims in Guam without settling claims

against the chartered organization, and the lack of any argument or evidence that

BSA is automatically liable to indemnify non-chartered Roman Catholic Entities.

                                       JOINDER

       Lujan Claimants join in the Petition for Rehearing of the D&V Claimants and

incorporate it as if fully stated herein.

                                    CONCLUSION

       For the foregoing reasons, the Court should grant rehearing en banc.


       Dated: May 27, 2025.                  Respectfully submitted,

                                             /s/ Christopher D. Loizides
                                             Christopher D. Loizides
                                             Loizides, P.A.
                                             1225 North King Street, Suite 800
                                             Wilmington, DE 19801
                                             Phone: 302.654.0248
                                             Email: Loizides@loizides.com

                                             and

                                             LUJAN & WOLFF LLP

                                             /s/ Delia Lujan Wolff
                                             Delia Lujan Wolff
                                             Suite 300, DNA Bldg.
                                             238 Archbishop Flores St.
                                                                                 18


Case: 23-1664   Document: 271-1   Page: 22   Date Filed: 05/27/2025


                                   Hagatna, Guam 96910
                                   Phone: (671) 477-8064/5
                                   Facsimile: (671) 477-5297
                                   Email: dslwolff@lawguam.com

                                   Attorneys for Lujan Claimants


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      Case: 23-1664      Document: 271-1    Page: 23    Date Filed: 05/27/2025


                         COMBINED CERTIFICATIONS

      I hereby certify the following:

      1. At least one of the attorneys whose names appear on this petition is a

member of the bar of this Court.

      2. This petition complies with the type-volume requirements set forth in

Federal Rule of Appellate Procedure 40(d)(3)(A) because the petition contains 3,829

words. The petition also complies with the typeface requirements of Federal Rule

of Appellate Procedure 32(a) because it was prepared in 14-point Times New Roman

font, a proportionally spaced typeface, using Microsoft Word.

      3. On May 27, 2025, I electronically filed the foregoing petition with the Clerk

of the Court for the United States Court of Appeals for the Third Circuit by using

the appellate CM/ECF system. Participants in the case are registered CM/ECF users

and service will be accomplished by the appellate CM/ECF system.

      4. Pursuant to L.A.R. 40.1(a), no paper copies of this petition will be filed

unless directed by the Clerk.

      5. This document was scanned for viruses using Norton™ 360 Deluxe, and

no virus was detected.

      Dated: May 27, 2025.                   Respectfully submitted,
                                             /s/ Christopher D. Loizides
                                             Christopher D. Loizides
                                             Loizides, P.A.
                                             1225 North King Street, Suite 800

                                                                                   20


Case: 23-1664   Document: 271-1   Page: 24   Date Filed: 05/27/2025


                                   Wilmington, DE 19801
                                   Phone: 302.654.0248
                                   Email: Loizides@loizides.com


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