Actual Notice via PACER Satisfies Due Process and Failure to Object Forfeits Bankruptcy Plan Challenges (Including Purdue-Pharma Third-Party Release Attacks)

Case: Acute, Inc. v. ECI Pharmaceuticals, LLC (In re: ECI Pharmaceuticals, LLC), No. 25-12829 (11th Cir. July 7, 2026) (per curiam) (not for publication).

I. Introduction

This consolidated bankruptcy appeal arose out of ECI Pharmaceuticals, LLC’s bankruptcy proceedings in the Southern District of Florida. Two bankruptcy-court actions were at issue: (1) a sale order authorizing ECI to sell substantially all assets to Acute, Inc. pursuant to an asset purchase agreement; and (2) a confirmation order approving a liquidation plan proposed by ECI and an affiliate.

Acute appealed both orders to the district court, which consolidated the appeals and dismissed them. Acute then sought reconsideration of the dismissal of the confirmation-order appeal under Federal Rule of Bankruptcy Procedure 8022, which the district court denied. The Eleventh Circuit affirmed across the board.

The key issues on appeal were procedural but consequential: (a) whether Acute abandoned challenges to the sale order by failing to develop argument on appeal; (b) whether Acute forfeited its plan-confirmation challenge by failing to object in the bankruptcy court; and (c) whether “actual notice” through PACER notices satisfied due process such that forfeiture should not be excused—especially where Acute sought to attack a plan’s third-party release in light of Harrington v. Purdue Pharma L.P..

II. Summary of the Opinion

  • Sale order appeal dismissed (affirmed): Acute listed issues but provided no substantive argument; under Eleventh Circuit practice, that constitutes abandonment, so the sale-order challenge failed.
  • Confirmation order appeal dismissed (affirmed): Acute did not object to confirmation in the bankruptcy court; therefore it forfeited its appellate challenge. None of the recognized exceptions for considering an unpreserved issue applied.
  • Rule 8022 reconsideration denied (affirmed): Acute did not show the district court “overlooked or misapprehended” a point of law; the court did not abuse its discretion in denying reconsideration.

III. Analysis

A. Precedents Cited

1) Singh v. U.S. Att’y Gen., 561 F.3d 1275 (11th Cir. 2009)

The court invoked Singh v. U.S. Att’y Gen. for a strict appellate briefing rule: merely stating that an issue exists, without “further argument or discussion,” constitutes abandonment. Applied here, Acute’s initial brief enumerated five sale-order issues but failed to develop them. The Eleventh Circuit treated those issues as abandoned, foreclosing merits review of both the sale order and the denial of reconsideration of that order.

Doctrinal role: Singh supplied the dispositive standard for the sale-order appeal—abandonment through inadequate briefing, distinct from forfeiture in the trial court.

2) In re Lett, 632 F.3d 1216 (11th Cir. 2011)

In re Lett anchored two points. First, as a general matter, appellate courts do not consider issues not raised in the bankruptcy court because bankruptcy cases “are to be tried in bankruptcy court.” Second, In re Lett supplied the court’s framework for analyzing forfeiture and referenced the overlap between civil plain error and one of the recognized exceptions to the preservation requirement.

The panel rejected Acute’s attempt to extend In re Lett into a broad “record sufficiently developed” exception that would eliminate the need to object below. The court characterized In re Lett as addressing a distinct context—whether an impaired creditor in a dissenting class needed to object to preserve an issue in a Chapter 11 cramdown—rather than “mine-run” failures to object to plan confirmation.

Doctrinal role: In re Lett framed preservation as the norm in bankruptcy appeals and cabined an appellant’s ability to treat Lett as a general escape hatch.

3) Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324 (11th Cir. 2004)

Access Now, Inc. v. Sw. Airlines Co. provided the Eleventh Circuit’s five recognized circumstances under which it may consider an issue raised for the first time on appeal. The panel methodically analyzed each:

  • Pure question of law + miscarriage of justice: Not satisfied, because applying Harrington v. Purdue Pharma L.P. required determining the release’s content—fact work—making it a mixed question.
  • No opportunity to raise below: Not satisfied, because Acute received PACER notices and thus had actual notice and an opportunity to object.
  • Substantial justice: Not satisfied; Acute’s substantial-justice argument reduced to due process, which the court rejected.
  • Proper resolution beyond doubt: Not satisfied; the panel noted differing interpretations of Purdue Pharma by bankruptcy courts, undermining “beyond any doubt.”
  • General impact / great public concern: Not satisfied; the question was fact-bound to this plan and would “shed little light” on broader Purdue Pharma disputes.

Doctrinal role: Access Now supplied the structured test that ultimately defeated Acute’s attempt to revive an unpreserved plan-confirmation objection.

4) Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024)

Acute’s merits theory focused on the plan’s third-party release, arguing it was invalid under Harrington v. Purdue Pharma L.P. The Eleventh Circuit did not decide the release’s validity. Instead, it treated Purdue Pharma as relevant only to the question whether an exception to forfeiture should apply.

Critically, the panel held that determining whether Purdue Pharma invalidated this plan’s release was not a “pure question of law” because it required first determining the content and operation of the release (a factual inquiry) and then applying Purdue Pharma to those specifics (a mixed question).

Doctrinal role: Purdue Pharma did not function as a merits holding here; it functioned as a claimed reason to excuse forfeiture—an argument the court rejected as too fact-dependent and too uncertain given ongoing interpretive disputes.

5) In re Le Ctr. on Fourth, LLC, 17 F.4th 1326 (11th Cir. 2021) and United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010)

Acute argued it lacked constitutionally adequate notice of the plan and thus could not be faulted for failing to object. The panel relied on In re Le Ctr. on Fourth, LLC, which in turn quoted United Student Aid Funds, Inc. v. Espinosa, for the proposition that due process is “more than satisfied” when a party receives actual notice of the filing and contents of a plan.

Two aspects of the court’s reasoning matter:

  • Actual notice via PACER: The court treated PACER notices of filings—coupled with access to plan contents—as actual notice sufficient to trigger the duty to object.
  • No excuse for not reading a long plan: The court rejected Acute’s claim that it reasonably did not read the 120-page plan due to lack of economic incentive, citing In re Le Ctr. on Fourth and Espinosa for the principle that a party could have read the plan it received.

The court also explicitly extended the notice principle beyond “creditors” to “interested parties like Acute.”

Doctrinal role: These cases supplied the due process baseline that defeated Acute’s attempt to characterize its failure to object as the product of constitutionally deficient notice.

6) Drago v. Jenne, 453 F.3d 1301 (11th Cir. 2006)

The panel cited Drago v. Jenne for the abuse-of-discretion standard governing review of a denial of reconsideration. Applied to Acute’s Rule 8022 motion, the panel held the district court did not abuse its discretion because Acute failed to show the court “overlooked or misapprehended” a point of law.

Doctrinal role: Drago established the deferential standard that made reversal of the reconsideration denial difficult absent a clear legal oversight.

B. Legal Reasoning

1) Abandonment (sale order): briefing is a gatekeeper

The Eleventh Circuit drew a firm line between listing issues and arguing them. By presenting multiple “issues” regarding the sale order without meaningful analysis, Acute triggered the abandonment doctrine under Singh v. U.S. Att’y Gen. The result was effectively jurisdictional-in-practice: the court would not reach merits because appellate review depends on developed argument.

2) Forfeiture (plan confirmation): bankruptcy is not “first-instance” appellate litigation

For the confirmation order, the opinion emphasized a structural premise: bankruptcy cases must be litigated in the bankruptcy court. Because Acute did not object to confirmation, its appellate challenge was forfeited unless an Access Now exception applied.

The court’s application of Access Now is notable for two moves:

  • Mixed question framing to defeat “pure law”: Even though Acute invoked a Supreme Court decision (Purdue Pharma), the court treated the dispute as mixed fact/law because the plan language and release mechanics must be determined first.
  • Actual notice as the pivot for “opportunity”: PACER notice and plan access established opportunity to object; failing to read or act was treated as a litigant choice, not a due-process defect.

3) Reconsideration (Rule 8022): no “overlooked or misapprehended” law

On reconsideration, Acute advanced (i) due process, (ii) a broad reading of In re Lett, and (iii) civil plain error. The panel found none warranted relief:

  • Due process: Even if raised earlier, it failed on the merits under In re Le Ctr. on Fourth, LLC and Espinosa.
  • In re Lett: Not misapprehended; it was context-specific and did not excuse a standard failure to object to confirmation.
  • Civil plain error: Acute raised it too late (after dismissal). The panel added that, in any event, it substantially overlaps with the “pure question of law + miscarriage of justice” exception the district court already rejected.

C. Impact

Although unpublished, the decision is practically instructive for bankruptcy litigants and appellate practitioners in the Eleventh Circuit:

  • Procedural preservation dominates: Parties who receive actual notice of a plan must object in the bankruptcy court to preserve plan-confirmation issues—including objections to third-party releases potentially implicated by Harrington v. Purdue Pharma L.P..
  • PACER notice has teeth: Actual notice via PACER notices and access to filings will likely be treated as sufficient to establish opportunity to object, undermining later due process arguments.
  • Purdue Pharma does not itself create an automatic exception to forfeiture: Even high-profile Supreme Court authority will not excuse preservation failures where plan interpretation is fact-bound and lower courts disagree on application.
  • Appellate briefing must be developed: Listing issues without argument risks outright abandonment under Singh v. U.S. Att’y Gen., potentially ending an appeal regardless of underlying merits.

IV. Complex Concepts Simplified

  • Abandonment (on appeal): You “abandon” an issue when you mention it but do not meaningfully argue it in your appellate brief. The court treats it as waived for appellate purposes.
  • Forfeiture (below): You “forfeit” an argument when you fail to raise it at the proper time in the trial court (here, the bankruptcy court). Appellate courts ordinarily will not consider it.
  • Actual notice: Notice that actually reaches you and gives you access to the relevant filing (here, via PACER notices and the ability to review the plan). If you had actual notice, due process is typically satisfied even if you did not take advantage of the opportunity to respond.
  • Third-party release: A plan provision that releases claims against non-debtors (such as affiliates or other protected parties). Whether such releases are allowed can be legally contentious, particularly after Harrington v. Purdue Pharma L.P..
  • Mixed question of law and fact: A question that requires both determining what happened or what documents mean (fact/application) and deciding the governing legal rule (law). These are harder to treat as “pure questions of law” for exception purposes.
  • Rule 8022 reconsideration: A mechanism to ask a district court (sitting as an appellate court in bankruptcy) to rehear a matter because it overlooked or misunderstood a legal point; it is not a vehicle to raise brand-new arguments after losing.

V. Conclusion

The Eleventh Circuit’s decision reinforces a procedural rule with substantive bite: in bankruptcy, parties who receive actual notice of a plan must timely object in the bankruptcy court or risk forfeiting later challenges—even those invoking major Supreme Court developments like Harrington v. Purdue Pharma L.P.. The opinion also underscores that appellate courts will not entertain undeveloped issues (abandonment under Singh v. U.S. Att’y Gen.) and will review reconsideration denials deferentially (Drago v. Jenne). Practically, the case is a cautionary template: read the plan, object on the record, and brief issues with full argument—or the merits may never be reached.