Page:MOAC Mall Holdings v. Transform Holdco.pdf/6

2 the validity of a sale or lease made under that authorization.

In this case, we are called upon to decide whether §363(m)’s strictures are jurisdictional. If so, a party may invoke that provision at any time—without fear of waiver, forfeiture, or similar doctrines interposing. If not, courts can apply such doctrines when evaluating §363(m) issues, where appropriate. For the reasons explained below, we conclude that §363(m) is not a jurisdictional provision.

This saga began in 2018, when Sears, Roebuck and Co. (Sears) filed for Chapter 11 bankruptcy. That filing created a bankruptcy estate that included (with exceptions not relevant here) “interests of the debtor in property.” §541(a)(1). Such an estate is sometimes administered by a bankruptcy trustee; other times the debtor itself administers it as the “debtor in possession.” §§1101, 1107; see Mission Product Holdings, Inc. v. Tempnology, LLC, 587 U. S. ___, ___ (2019) (slip op., at 2). Sears self-administered, and as a debtor in possession, Sears had statutorily qualified powers to dispose of the estate’s property. §§1101, 1107, 363.

Early in 2019, Sears exercised one of those powers: its right to “use, sell, or lease, other than in the ordinary course of business, property of the estate.” §363(b)(1). Sears agreed to sell most of its assets to respondent Transform Holdco LLC (Transform), after which the Bankruptcy Court issued an order (Sale Order) approving the agreement.

Among the assets conveyed in that sale was the right for Transform to “designate to whom a lease between Sears … and some landlord should be assigned.” In re Sears Holdings Corp., 616 B. R. 615, 619 (SDNY 2020) (Sears II). The agreement did not actually designate any assignees; it simply meant that, if Transform duly designated an assignee, Sears had to assign the lease to the designee. One of the leases eligible for such assignment was Sears’s lease