A Problem with the Code? Third Circuit Rules Appointment of an Examiner Mandatory: Is It Time to Amend the Statute?

The Third Circuit has a reputation as being a “plain meaning” court—meaning that it strictly construes and applies the words of a statute. Its January 19, 2024, opinion in In re FTX Trading Ltd., No. 23-2297 (3rd Cir. Jan. 19, 2024) (“FTX”) is an example. The relevant facts in the “highly complex” FTX bankruptcy were few and straightforward as related to the question before the court: “whether 11 U.S.C. § 1104(c)(2) (“§ 1104(c)(2)”) mandates the Bankruptcy Court to grant the U.S. Trustee’s motion to appoint an examiner to investigate FTX’s management.” Id., Slip. Op. at 3.