September 23, 2022 - As, we’ve reported, earlier this month a 3-judge panel of the United States Court of Appeals for the Second Circuit (“2nd Circuit”) reversed a lower court decision that permitted several lenders to retain a mistaken 500MM payment made by Citi in connection with a 2016 credit agreement to Revlon. This week, the defendants petitioned the full 2nd Circuit for “en banc” rehearing of the panel’s decision. As we noted in our recent webinar on the mistaken payment decision, it is rare for the court to grant en banc review. The Court’s own rule makes that clear: “A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance. We will continue to monitor this case closely and report on whether the court agrees to a rehearing.
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