Securities And Exchange Commission v. SiliconSage Builders, LLC

Background

Marwan and Rana Naboulsi moved for permission to seek an immediate, interlocutory appeal from the court’s July 7, 2022 order. That earlier order granted the Receiver’s motion to reject certain executory purchase and sale agreements. Ravi Jagannathan joined the motion. The Receiver opposed it, and Acres Loan Origination, LLC joined the opposition.

The Receiver also argued that an order rejecting a contract might already be final and appealable, meaning that permission for an interlocutory appeal might not be necessary. The court noted that it had not found Ninth Circuit authority addressing whether an order rejecting executory contracts in a receivership is final and appealable.

Ruling

The court found persuasive a Third Circuit decision holding that an order approving rejection of executory contracts was final and appealable because it fully resolved a distinct set of issues. Applying that reasoning, the court held that its July 7 order fully and finally resolved whether the purchasers could proceed with their condominium purchase agreements or whether those agreements would be rejected.

The court said the purchasers’ possible ability to pursue liens against the property did not change the finality analysis. It explained that the purchasers could, like the party in the cited decision, pursue a claim for damages resulting from the rejection or breach.

In the alternative, if the Ninth Circuit decided that the July 7 order was not appealable because it was interlocutory, the court granted the motion to certify the order for interlocutory appeal under 28 U.S.C. § 1292(b). The court then ordered: “IT IS SO ORDERED.”