Del Monte Foods Corporation II Inc.

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW JERSEY
U.S. COURTHOUSE
402 E. STATE STREET
TRENTON, NEW JERSEY 08608
Hon. Michael B. Kaplan 	609-858-9360
Judge, United States Bankruptcy Court
April 2, 2026
Re: 	Del Monte Foods Corporation II Inc.
Case No. 25-16984 (MBK) (Jointly Administered)
Motion for Certification of Direct Appeal to Third Circuit
All Counsel of Record:
Before the Court is the Request of the Ad Hoc Group of Minority Secured Lenders (the
“Movants”) seeking certification of this Court’s Order (A) Approving the Settlement Reached Among
the Mediation Parties and (B) Granting Related Relief (the “Settlement Approval Order”) for direct
appeal to the United States Court of Appeals for the Third Circuit (the “Motion”). ECF No. 1283. The
debtors (the “Debtors”) and the Ad Hoc Group of Majority Secured Lenders (the “Majority Group”
together with the Debtors, the “Objecting Parties”) each filed opposition. ECF Nos. 1356 and 1357.
In response, the Movants filed a reply. ECF No. 1366. The Court considered this matter on the papers
submitted without oral argument. For the reasons set forth below the Motion is DENIED.
I. 	Background and Procedural Posture
The Settlement Approval Order was entered following a two-day evidentiary hearing and
resolved disputes among key stakeholders, including the Debtors, the Majority Group, and the Official
Committee of Unsecured Creditors. The settlement provided, among other things, for an $8 million
recovery to general unsecured creditors and resolved potential litigation that, according to the record,
threatened to disrupt the Debtors’ restructuring and sale process. The Movants, who opposed the
settlement, now seek certification of a direct appeal of the Settlement Approval Order to the Third
Circuit.
II. 	Positions of the Parties
The Movants contend that certification is warranted because the Settlement Approval Order
presents specific questions of law appropriate for immediate review under 28 U.S.C. § 158(d)(2).
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Movants frame the issues on appeal as whether the Settlement Approval Order violates core
provisions of the Bankruptcy Code governing creditor treatment—specifically, whether the settlement
structure is impermissible under 11 U.S.C. §§ 1129(b)(1) and 1123(a)(4). In this regard, Movants
argue that the settlement provides consideration to general unsecured creditors while excluding
Movants, notwithstanding Movants’ asserted entitlement to priority as secured creditors, and that such
treatment raises legal questions concerning both unfair discrimination and equal treatment among
similarly situated creditors. Movants further contend that these issues present pure questions of law,
including 	whether, 	and 	to 	what 	extent, 	statutory 	requirements 	typically 	applied 	in 	the 	plan
confirmation context—such as the prohibition on unfair discrimination and the requirement of equal
treatment within a class—apply to settlements approved under Bankruptcy Rule 9019. Movants assert
that the Court’s approval of the settlement without resolving these statutory questions warrants
immediate appellate review. Movants also argue that there is no controlling authority in the Third
Circuit addressing the application of these statutory provisions in the context presented here, or,
alternatively, that existing case law does not resolve the questions raised by the settlement structure.
In support, Movants point to decisions from other jurisdictions that they contend reflect differing
approaches to the treatment of creditor distributions outside the plan context. Finally, Movants assert
that immediate appeal would materially advance the progress of the case, arguing that the legality of
the settlement structure is central to the Debtors’ restructuring and that resolving these issues now
would avoid the risk of later disruption.
The Debtors respond that the Motion seeks to reframe a fact-intensive settlement approval as
a legal question suitable for direct appeal. First, the Debtors contend that Movants did not clearly raise
an “unfair discrimination” objection before this Court and therefore cannot rely on that theory as a
basis for certification. Second, the Debtors argue that the question presented is not a “pure” legal issue
but instead involves the application of well-established legal standards to a detailed factual record
developed through extensive briefing and a two-day evidentiary hearing. Third, the Debtors assert
that the issues identified by Movants do not involve “a question of law as to which there is no
controlling decision” within the meaning of 28 U.S.C. § 158(d)(2), as the governing standards for
approval of settlements under Bankruptcy Rule 9019 are well defined under Third Circuit precedent,
including 	In re Martin, 91 F.3d 389 (3d Cir. 1996). Fourth, the Debtors contend that the Motion does
not present “a question of law requiring resolution of conflicting decisions,” arguing that Movants
have failed to identify any meaningful split in authority and instead rely on decisions arising in
different factual contexts. Fifth, the Debtors submit that certification will not materially advance the
progress of the case. To the contrary, according to the Debtors, the settlement is a central component
of the Debtors’ restructuring efforts, and an immediate appeal would risk delay and disruption. Sixth,
the Debtors contend that the issues raised are not matters of public importance, but instead reflect a
dispute specific to the facts and circumstances of this case.
The Majority Group joins in the Debtors’ opposition and advances additional arguments. As
a threshold matter, the Majority Group argues that Movants lack appellate standing because they
cannot demonstrate that they would receive 	any 	recovery even if the settlement were unwound. The
Majority Group further contends that Movants have not satisfied any of the statutory criteria for
certification and, in addition, submit that Movants failed to preserve the arguments they now seek to
raise on appeal. In particular, the Majority Group asserts that Movants did not adequately present their
unfair discrimination or related statutory arguments in connection with the settlement approval
proceedings and therefore cannot rely on those arguments as a basis for certification.
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On the merits, the Majority Group argues that controlling precedent forecloses Movants’ legal
theories and that the authorities cited by Movants do not create any meaningful conflict. The Majority
Group also asserts that the Settlement Approval Order is a poor vehicle for direct appeal because it
rests on fact-intensive determinations and discretionary judgment. In this regard, the Majority Group
notes that, while Movants identify a single purported legal issue for certification, they have
simultaneously designated 	numerous 	issues 	for appeal 	to 	the 	district 	court, including 	issues
concerning the sufficiency of the evidentiary record, the adequacy of this Court’s analysis, and the
weighing of factors relevant to settlement approval. The Majority Group argues that certifying a direct
appeal under these circumstances would effectively invite the Court of Appeals to address a host of
fact-bound issues that are not appropriate for direct review. Finally, the Majority Group contends that
an immediate appeal would hinder, rather than advance, the Debtors’ restructuring by introducing
delay and uncertainty at a critical stage of the case.
In reply, Movants dispute both the standing and preservation arguments advanced by the
Debtors and the Majority Group. With respect to standing, Movants contend that the Settlement
Approval Order itself imposes a concrete pecuniary injury by allocating value to certain unsecured
creditors while excluding Movants entirely, and that such exclusion constitutes a sufficient injury for
purposes of appellate standing. Movants further argue that, even if the ultimate recovery is uncertain,
the loss of the opportunity to obtain a distribution consistent with the Bankruptcy Code’s priority
scheme is itself a cognizable injury, relying on 	Czyzewski v. Jevic Holding Corp., 580 U.S. 451 (2017)
to support that proposition.
With respect to preservation, Movants contend that they adequately raised their arguments
before this Court, including arguments grounded in priority principles, unfair discrimination, and the
alleged distributional effects of the settlement. Movants argue that their objection and oral argument
repeatedly invoked 	Jevic 	and challenged the settlement as an impermissible distribution of estate value
that excluded them, while providing recoveries to other creditors. They further assert that any
refinement of those arguments on appeal constitutes additional support for claims already presented,
rather than new arguments.
III. 	Applicable Law
Motions for direct appeal to the court of appeals are governed by 28 U.S.C. § 158(d)(2), which
provides that a district court may certify a final order for immediate appeal to the court of appeals. In
accordance with section 158(d)(2)(A) and (B), certification is mandatory if the Court determines that
any of the following exist:
1) 	the order “involves a question of law as to which there is no controlling
decision”;
2) 	the order “involves a question of law requiring resolution of conflicting
decisions”;
3) 	the order “involves a matter of public importance”; or
4) 	immediate appeal of the order “may materially advance the progress of the
case.”
28 U.S.C. § 158(d)(2); 	see also Whittaker, Clark & Daniels, Inc., 2023 WL 4875915, at *1–2 (Bankr.
D.N.J. July 31, 2023).
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The direct-appeal pathway for a bankruptcy court order under 28 U.S.C. § 158(d)(2) was
enacted to “foster the development of coherent bankruptcy-law precedent” by facilitating “guidance
on pure questions of law” from the circuit courts of appeals. 	Weber v. United States, 484 F.3d 154,
158–59 (2d Cir. 2007). It is generally reserved for gaps or conflicts in bankruptcy-law precedent—
when the order “involves a question of law as to which there is no controlling decision” or “involves
a question of law requiring resolution of conflicting decisions.” § 158(d)(2)(A)(i), (ii). Certification
may also be granted for an order that “involves a matter of public importance” or for which immediate
appeal “may materially advance the progress of the case,” § 158(d)(2)(A)(i), (iii), but courts construe
these secondary provisions “narrowly.” 	Polk 33 Lending LLC v. THL Corp. Fin., Inc. 	(In re Aerogroup
Int’l, Inc.), 2020 WL 757892, at *5 (D. Del. Feb. 14, 2020).
Courts in this circuit have consistently recognized that certifying “pure” legal questions
accords with the precedent-building purpose of § 158(d)(2). 	See, 	e.g., 	IRS v. Davis, 2016 WL
3567039, at *2 (D.N.J. June 29, 2016) (“the question on appeal—whether there is a timeliness
requirement to the term ‘return’ under the BAPCA—is a legal one”); 	Troisio v. Erickson 	(In re IMMC
Corp.), 2016 WL 356026, at *5 (D. Del. Jan. 28, 2016) (“whether bankruptcy courts are included in
the definition of ‘courts’ under § 610 for purposes of § 1631 is a pure question of law”). In contrast,
certification ordinarily is inappropriate when there is an opportunity to build additional precedent
because the lower court’s order involves questions of fact, mixed questions of fact and law, or the
application of well-settled law to a particular set of facts. 	See Weber, 484 F.3d at 158 (“Congress
believed direct appeal would be most appropriate … to resolve a question of law not heavily dependent
on the particular facts of a case”). Courts in this circuit have rejected requests to certify fact-bound
orders. 	See In re Tribune Co., 477 B.R. 465, 472 (Bankr. D. Del. 2012) (“[H]ow this Court measured
materiality is not a pure legal issue; it is not appropriate for direct appeal.”); 	Bepco LP v.
Globalsantafe Corp. 	(In re 15375 Mem’l Corp.), 2008 WL 2698678, at *1 (D. Del. July 3, 2008)
(Under § 1112(b) of the Bankruptcy Code, “whether such ‘unusual circumstances’ exist on the record
… is necessarily fact-intensive, as is a review of that court’s determination that no lack of good faith
exists on the part of the debtors. Such factual issues preclude a direct appeal.”).
IV. 	Discussion
The Court begins with the threshold arguments raised by the Objecting Parties concerning
standing and preservation. 	First, the Majority Group contends that Movants lack appellate standing
because they cannot demonstrate that they would receive any recovery even if the settlement were
unwound. This Court is not persuaded that the absence of a guaranteed recovery deprives Movants of
standing for purposes of seeking appellate review. As Movants correctly observe, the Settlement
Approval Order itself directs that Movants receive no recovery, while providing a distribution to other
unsecured creditors. Whether Movants would ultimately recover in the absence of the settlement is
not dispositive at this stage. The alleged injury—the exclusion from a distribution that Movants
contend must comply with the Bankruptcy Code’s priority scheme—is sufficient to establish the type
of pecuniary interest typically required for appellate standing in bankruptcy cases. 	See, e.g., Jevic,
580 U.S. at 464. The existence of standing, however, does not resolve whether certification is
appropriate under § 158(d)(2).
The Court next considers the related argument that Movants failed to preserve the issues they
now seek to present on appeal. The Objecting Parties argue that Movants failed to preserve the
arguments they now seek to advance on appeal. The Court does not find that the preservation issue
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provides a basis to resolve the Motion. The record reflects that Movants raised objections to the
settlement grounded in its distributional effects and its alleged inconsistency with the Bankruptcy
Code’s priority framework, including reliance on 	Jevic 	and related principles. While the parties
dispute the precise framing and clarity of those arguments, the Court is satisfied that Movants
sufficiently presented the substance of their position for purposes of this Motion. 	See, e.g., Minority
Ad Hoc Group’s Obj. to Settlement Motion 	¶ 97, [Filed Under Seal, 1/21/26] (“The Debtors should
not be permitted to use the Settlement to circumvent solicitation and confirmation requirements
contemplated by the Code exactly to prevent this kind of unfair creditor treatment.”); 	id. 	at ¶ 85 (citing
Jevic 	and arguing that the settlement’s “distribution . . . contravenes the Bankruptcy Code’s priority
scheme”); 	id. 	at ¶99 (citing 	Jevic 	and arguing that their treatment under the settlement “violate[s] the
Bankruptcy Code’s priority scheme without consent”).
Having considered the threshold arguments, the Court now addresses whether certification is
warranted under 28 U.S.C. § 158(d)(2). This Court is not persuaded that the Settlement Approval
Order presents a suitable vehicle for direct appeal. The approval of a settlement under Bankruptcy
Rule 9019 is inherently a fact-intensive determination requiring the Court to assess, among other
things, the probability of success in litigation, the complexity, expense, and likely duration of such
litigation, and the paramount interests of creditors. 	See In re Martin, 91 F.3d at 393. These
considerations necessarily require the Court to weigh competing evidence, evaluate risks, and exercise
its discretion based upon the particular circumstances of the case.
The record here reflects precisely such an exercise. The Settlement Approval Order followed
a two-day evidentiary hearing, extensive briefing, and the consideration of a substantial and developed
factual record. The Court’s determination was grounded in well-established Third Circuit precedent
and required the application of those standards to the specific facts presented, including the risks
attendant to continued litigation and the benefits of the negotiated resolution. Courts have consistently
recognized that such determinations—where the Court is called upon to apply settled legal principles
to a detailed factual record—are not well suited for direct appellate review under § 158(d)(2). 	See,
e.g., In re Tribune, 477 B.R. at 472 (collecting cases) (declining certification where the issue turned
on how the court applied established standards to the facts before it). That is particularly so where, as
here, the issues identified by Movants arise from the Court’s evaluation of the evidentiary record and
its discretionary judgment in approving the settlement. The Court also finds persuasive the Majority
Group’s observation that, notwithstanding Movants’ attempt to frame a single legal issue for
certification, Movants have designated numerous additional issues for appeal that are plainly fact-
bound. Those issues include challenges to the sufficiency of the evidentiary record; the Court’s
evaluation of the complexity, expense, and delay associated with continued litigation; and the
adequacy of the Court’s analysis of the settlement factors. 	See, e.g., Notice of Appeal 	¶¶ 6-13, ECF
No. 1284. Certification under these circumstances would risk inviting the Court of Appeals to consider
a broader set of issues that turn on the application of settled law to the factual record, rather than a
discrete legal question appropriate for immediate review. Accordingly, the Settlement Approval Order
does not present the type of purely legal issue contemplated by § 158(d)(2) but rather reflects a fact-
bound application of settled law, making it an unsuitable candidate for direct appeal.
Movants next assert that conflicting decisions warrant immediate appellate resolution. Again,
this Court does not agree. To satisfy § 158(d)(2)(A)(ii), Movants must identify conflicting decisions
that require resolution by the Court of Appeals—not merely cite cases that reach different outcomes
on different records or in differing procedural postures. The authorities cited by Movants do not
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establish such a divergence. Rather, those decisions arise in distinct contexts—including plan
confirmation—and reflect the application of established principles to those respective records. 	See,
e.g., Movants’ Request for Direct Certification 	¶ 22, ECF No. 1283 (citing 	In re Trib. Co., 972 F.3d
228 (3d Cir. 2020), which addressed plan confirmation). They do not demonstrate that courts have
adopted competing legal standards governing the issues Movants seek to raise here. Nor do out-of-
circuit decisions, even if arguably in tension, establish the type of conflict contemplated by the statute.
See, e.g. In re Millennium Lab Holdings II, LLC, 543 B.R. 703, 714 (Bankr. D. Del. 2016) (collecting
cases and explaining that “inter-circuit splits do not satisfy section 158(d)(2)”). This is particularly so
where controlling precedent within this Circuit provides the governing framework. 	In re Martin, 91
F.3d at 393 (setting forth the factors governing approval of settlements under Bankruptcy Rule 9019).
At most, the cases cited by Movants illustrate that courts have addressed similar issues in fact-specific
ways, which underscores—rather than undermines—that the issues presented here are not amenable
to resolution through a direct appeal. Accordingly, Movants have not demonstrated the existence of
conflicting decisions requiring immediate appellate intervention.
Finally, Movants assert that immediate appellate review will materially advance the progress
of these cases. This Court disagrees. As an initial matter, the Court notes that Movants’ argument
necessarily overlaps with the related contention that the issues presented warrant immediate review
due to their asserted importance. As discussed at the outset, certification may be granted for an order
that “involves a matter of public importance,” 28 U.S.C. § 158(d)(2)(A)(i), but courts read this basis
narrowly and with a specific meaning. 	See, e.g., Polk, 2020 WL 757892, at *5; 	In re Nortel Networks
Corp., 2010 WL 1172642, at *2 (Bankr. D. Del. Mar. 18, 2010). In particular, courts emphasize that
an order must ‘“transcend the litigants and involve a legal question, the resolution of which will
advance the cause of jurisprudence to a degree that is usually not the case.’” 	Polk, 2020 WL 757892,
at *5 (quoting 	In re Am. Home Mortg. Inv. Corp., 408 B.R. 42, 44 (D. Del. 2009)). Even where a
dispute implicates public policy concerns, those concerns must be broad and must still present a legal
question. 	See Troisio, 	2016 WL 356026, at *6; 	Nortel, 2010 WL 1172642, at *2. Thus, that an issue
is hotly contested and important to the parties is not sufficient. 	See In re Millennium Lab Holdings II,
LLC, 543 B.R. at 716. Similarly, issues involving the application of legal standards to a particular
factual record generally do not satisfy this standard because they do not “transcend” the parties or
meaningfully advance the development of the law. 	Polk, 2020 WL 757892, at *5.
V. 	Conclusion
For the reasons expressed herein, the Court denies the Motion. The Debtors are directed to
submit a proposed form of order consistent with this Opinion.
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