Queenie and Robins in a Gas Fracking World : The Automatic Stay’s Conjectured Extension to Actions Against Non-Debtor Pool Participants

As of the a bankruptcy petition’s filing date (the “petition date”), § 362(a)(1) stays “the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title,” and § 362(a)(3) bars “any act” either “to obtain possession of property of the estate or of property from the estate” or “to exercise control over property of the estate ….” For decades, while stressing the “fundamental importance of the automatic stay to the purposes sought to be accomplished by the … Code,” federal courts have read § 362(a)(1) and (a)(3) expansively and strictly. Yet, beginning in 1986, if not earlier, “extraordinary” cases generated a body of law extending the protective embrace of these injunctive paragraphs to certain non-debtors, a class of persons unmentioned in either's plain text. Nebulous pre-Code cases had broached such a possibility; few, if any, courts had seen fit to impose a non-debtor stay in actuality. Drawing little from this questionable past but much from its intended overhaul by the Code, two decisions hewed a standard to guide such interpretive feats: A.H. Robins Co. v. Piccinin (“Robins”), the Fourth Circuit decision from 1986 to which this school traces its origins, and Queenie Ltd. v. Nygard Int’l (“Queenie”), the Second Circuit’s 2003 take on one of Robins’ original and amended predicate circumstances. In the wake of these seminal opinions, sheer repetition eventually imputed a banal respectability to their doctrinal framework, even as the specific cases employing it continued to resist harmonization. Decades after its start, an eminently U.S. phenomenon—the shale energy boom—provides new and timely reasons to decipher this untidy precedent. Historically speaking, participants in the global energy industry often launched joint operations. Still, the mechanics for hydraulic fracturing, the peculiarities of the sedimentary layer where natural gas and oil rest, and the diversity of U.S. governing regimes led to uniquely complex—and intimate—commercial alliances amongst otherwise fierce competitors. The relevance of Robins, Queenie, and their issue to this industry, a possibility barely noted in literature or case law but arguably compelled by their ratiocination, demands renewed attention be paid to this abstruse area