Double-Waiver Forecloses Interlocutory Arbitration Appeal in Bankruptcy: Sixth Circuit Affirms Where Appellants Neither Preserved the Arbitration Agreement Nor Challenged Bankruptcy-Conflict Grounds

Introduction

In Brian Cummings v. Bretton Keefer (No. 24-5606, decided July 16, 2025), the United States Court of Appeals for the Sixth Circuit affirmed a bankruptcy court’s refusal to dismiss or compel arbitration in a fee dispute stemming from a medical malpractice settlement. The case sits at the intersection of arbitration law and bankruptcy administration, and it turns on a deceptively simple but decisive procedural point: appellants must confront every dispositive ground supporting the lower court’s ruling and properly preserve the evidentiary basis for the relief they seek.

The appeal arose from an adversarial posture within the bankruptcy of the law firm Cummings Manookian, PLLC (CM). Brian Cummings, a former CM lawyer and later co-counsel for client Bretton Keefer, withdrew from the case before trial and later sought a share of attorney fees after a settlement was reached. Afsoon Hagh (also formerly at CM and later Keefer’s counsel) and Keefer moved in bankruptcy court to dismiss or to compel arbitration based on an arbitration provision in retainer agreements. After the bankruptcy court denied their motion—and the district court affirmed—Hagh and Keefer pursued an interlocutory appeal to the Sixth Circuit.

The Sixth Circuit held that it had jurisdiction for an interlocutory appeal under 9 U.S.C. § 16(a)(1) because the motion effectively sought to compel arbitration. But it affirmed on “double waiver” grounds: appellants (1) failed to challenge the bankruptcy court’s refusal to consider the retainer agreement because it had not been properly introduced into evidence; and (2) failed to challenge the bankruptcy court’s alternative holding that compelling arbitration would frustrate the purposes of the Bankruptcy Code. Either omission was fatal; together they foreclosed appellate relief.

Background

• Underlying tort matter: Keefer retained CM to pursue wrongful death claims against Vanderbilt University Medical Center after his mother’s death.
• Attorney movement and bankruptcy: Cummings left CM but remained co-counsel; CM later suffered sanctions, its principal (Manookian) was suspended, and CM entered bankruptcy. Trustee Jeanne Burton sued Hagh and her new firm for alleged fraudulent transfers.
• Retainer agreements: Keefer signed an initial CM retainer with mediation/arbitration provisions, later signed a successor retainer with Manookian’s new firm with materially identical ADR provisions. Cummings later proposed his own engagement letter mirroring the ADR terms but adding a “five-star only” online review obligation; Keefer declined, and Cummings withdrew.
• Settlement and fee dispute: On the eve of trial—with Hagh and new co-counsel John Edwards—the case settled. Funds were escrowed pending a judicial determination of fees among Hagh, Cummings, and CM.
• Procedural posture: Cummings sued in state court for fees; the trustee removed to bankruptcy court. Hagh and Keefer moved to dismiss or stay pending mediation/arbitration. The bankruptcy court set an evidentiary hearing and required witness and exhibit lists by a specific deadline.
• Critical misstep: Appellants failed to file witness and exhibit lists by the deadline, sought to rely on attachments to their motion, and asked the bankruptcy court to take judicial notice. The court declined, found no arbitration agreement in the evidentiary record, and further held that arbitration would frustrate the purposes of the Bankruptcy Code. The district court affirmed; appellants took an interlocutory appeal.

Summary of the Opinion

The Sixth Circuit affirmed the bankruptcy court, concluding:

• Jurisdiction: The court had interlocutory appellate jurisdiction under 9 U.S.C. § 16(a)(1) because, although styled as a “motion to dismiss or, in the alternative, to stay pending mediation and arbitration,” the motion substantively sought to compel arbitration. The denial of such a motion is immediately appealable (citing Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023)).
• Standard of review: The court reviewed the bankruptcy court’s decision directly and afforded no deference to the district court’s affirmance.
• Dispositive rulings not challenged—waiver:
  • Evidentiary ruling: Appellants did not challenge the bankruptcy court’s refusal to consider the retainer agreement because they failed to comply with the scheduling order and did not secure judicial notice. Without the agreement in the record, their arbitrability arguments were not properly before the court.
  • Bankruptcy conflict analysis: Appellants did not address the bankruptcy court’s alternative holding that compelling arbitration would frustrate the purposes of the Bankruptcy Code, reached after applying a multi-factor test drawn from In re Nu-Kote Holding, Inc. and In re Wade.
• Consequently, the court declined to reach the merits of arbitrability, the existence/enforceability/scope of the purported agreement, or broader FAA–Bankruptcy Code conflict questions. It affirmed on waiver grounds.

Analysis

Precedents and Authorities Cited

• 9 U.S.C. § 16(a)(1) and Coinbase, Inc. v. Bielski (2023): The court relied on § 16(a)(1) to confirm interlocutory appealability of orders denying motions to compel arbitration. Coinbase is cited for the straightforward proposition that Congress authorized immediate appeals of such orders.
• McMillan v. LTV Steel, Inc. and In re Hamilton: The Sixth Circuit reviewed the bankruptcy court’s decision directly and did not defer to the district court—reiterating the standard approach in bankruptcy appeals within the circuit.
• Shearson/American Express v. McMahon (1987); In re F & T Contractors, Inc. (6th Cir. 1981); In re Patriot Solar Group (Bankr. W.D. Mich. 2017): The court noted, but did not resolve, lingering questions about the discretion bankruptcy courts retain to deny arbitration in core proceedings after McMahon. The opinion collected out-of-circuit authorities largely affirming that bankruptcy courts retain discretion to deny arbitration in core matters due to conflicts with the Code’s purposes.
• Out-of-circuit approaches (illustrative):
  • In re Gandy (5th Cir.), In re Eber (9th Cir.), In re Mintze (3d Cir.), Moses v. CashCall (4th Cir.), In re Anderson (2d Cir.): These decisions generally recognize discretion to deny arbitration in core proceedings, distinguishing core from non-core impacts on the bankruptcy process.
  • In re White Mountain Mining Co. (4th Cir.): Supports that the bankruptcy court—not an arbitrator—decides whether a matter is core or non-core.
• In re Nu-Kote Holding, Inc. (Bankr. M.D. Tenn. 2001) and In re Wade (Bankr. W.D. Tenn. 2014): The bankruptcy court applied a multi-factor test from Tennessee bankruptcy courts to assess whether compelling arbitration would conflict with the Bankruptcy Code’s objectives. Although the Sixth Circuit did not opine on that test, it emphasized appellants’ failure to contest the court’s analysis under it.
• White Oak Property Development, LLC v. Washington Township (6th Cir. 2010): A cornerstone of the decision. When a lower court’s judgment rests on alternative, independent grounds, an appellant’s failure to challenge even one dispositive ground results in waiver of the entire appeal. The court applied White Oak to both the evidentiary and bankruptcy-conflict rulings.
• Castellon-Vogel v. International Paper Co. and Scott v. First Southern National Bank (6th Cir.): Reinforce the duty to confront a lower court’s reasoning; failing to address the basis of the ruling in briefing constitutes abandonment.
• United States v. Archibald and Fitts v. Sicker: Issues not raised in appellate briefs are waived.
• Federal Rule of Evidence 104(a): The bankruptcy court, as gatekeeper, decides preliminary questions about admissibility of evidence—here, whether the retainer agreement could be considered in the absence of compliance with the scheduling order and formal admission.

Legal Reasoning

The Sixth Circuit’s reasoning is notably procedural and disciplined:

• First, the court clarified jurisdiction under § 16(a)(1). It looked past the caption of appellants’ motion to its substance. Because appellants repeatedly asked the bankruptcy court to “compel” arbitration—in motion papers and at argument—the order denying that relief was immediately appealable.
• Second, the court applied the direct-review principle in bankruptcy appeals and proceeded to the dispositive question: Did appellants preserve their arguments? The answer was no, in two distinct ways:
  • Evidence preservation failure: The bankruptcy court had set a clear evidentiary procedure—file witness and exhibit lists by a deadline. Appellants failed to do so, and the court declined to take judicial notice of earlier attachments to the motion. The Sixth Circuit underscored that the bankruptcy court’s exclusion was an evidentiary ruling appellants never challenged on appeal. Without the retainer agreement in evidence, there was nothing to litigate about arbitrability in this record.
  • Alternative-ground failure: The bankruptcy court also held that, even if an arbitration agreement existed, compelling arbitration would “frustrate the purpose of the Bankruptcy Code,” applying a seven-factor framework used within the circuit’s bankruptcy courts. Appellants did not confront that holding in the district court or in the Sixth Circuit. Under White Oak, failure to challenge an independent, dispositive ground waives the entire appeal.
• Third, because both omissions independently doomed the appeal, the court declined to reach any merits questions (existence, enforceability, and scope of the arbitration agreement; who is bound; whether the proceeding is core or non-core; or the degree of bankruptcy court discretion post-McMahon). This restraint is consistent with the court’s commitment to issue preservation and judicial economy.
• Finally, the court rejected an argument that the bankruptcy court violated the party-presentation principle by “supplementing” the parties’ arguments. The record showed appellees had extensively argued the bankruptcy conflict point, and appellants responded; the bankruptcy court did not go beyond the issues presented.

Impact and Practical Implications

Although the opinion is “not recommended for publication,” it sends strong signals to practitioners in the Sixth Circuit about arbitration motions in bankruptcy:

• Procedural rigor at evidentiary hearings: When a bankruptcy court sets an evidentiary hearing and requires exhibit lists, parties cannot assume that exhibits attached to motions will be deemed evidence. Failure to comply with the court’s process is fatal—particularly when the entire motion depends on a contract’s existence and terms.
• Appellate preservation is all-or-nothing: Under White Oak, appellants must challenge every independent ground supporting the order under review. Where the bankruptcy court denies a motion both on evidentiary grounds and on Bankruptcy Code conflict grounds, appellants must brief both. Ignoring either ground waives the appeal.
• FAA § 16(a)(1) is available—but not a cure-all: The court confirms that interlocutory appeals lie from denials of motions to compel arbitration, even when those motions are framed as motions to dismiss or stay. But jurisdiction does not substitute for preservation; appellants still must ensure the record contains the arbitration agreement and must meet their appellate burdens.
• Bankruptcy–arbitration merits remain open in the Sixth Circuit: The court again declined to decide whether, after McMahon, bankruptcy courts retain discretion to deny arbitration in core proceedings. It cited the consensus of other circuits recognizing such discretion but left the question for another day. Litigants should continue to frame and preserve both core/non-core arguments and “inherent conflict” analyses to develop the law in the Sixth Circuit.
• Trustee and estate interests in fee disputes: The dispute here implicated the bankruptcy estate’s assets (the right to fees traceable to prepetition firm work and retainer agreements). Where estate administration and equitable distribution are at stake, bankruptcy courts tend to view compelled arbitration with heightened skepticism—particularly if it risks fragmenting centralized resolution or impairing creditor interests.
• Practice pointers for arbitration proponents in bankruptcy:
  • Comply meticulously with bankruptcy court scheduling orders for evidentiary hearings; formally introduce the contract and authenticate it.
  • If an evidentiary misstep occurs, ask the bankruptcy court to take judicial notice; if denied, preserve and brief abuse-of-discretion challenges on appeal—and consider asking the district or circuit court to take judicial notice.
  • On appeal, expressly challenge all alternative holdings, including any Bankruptcy Code conflict analysis (e.g., core/non-core, impact on estate administration, claims allowance, equitable distribution, and potential duplication or inconsistency).
  • Anticipate and address the multi-factor Nu-Kote/Wade analysis applied by Tennessee bankruptcy courts.

Complex Concepts Simplified

• Interlocutory appeal under 9 U.S.C. § 16(a)(1): Normally, parties must wait for a final judgment to appeal. Section 16(a)(1) makes an exception for orders denying motions to compel arbitration, allowing immediate appeal to prevent parties from losing the benefit of their bargained-for arbitral forum.
• Core vs. non-core proceedings: In bankruptcy, “core” matters are central to the bankruptcy process (e.g., administration of the estate, allowance of claims, preference/fraudulent transfer actions). Non-core matters are related to the bankruptcy but could exist outside it. Many courts allow arbitration in non-core matters but recognize discretion to deny arbitration in core matters when it conflicts with bankruptcy goals.
• Inherent conflict with the Bankruptcy Code: Even though the FAA favors arbitration, courts may deny arbitration if it would undermine fundamental bankruptcy objectives—centralized resolution, protection of the estate, equitable distribution to creditors, and efficient administration.
• Judicial notice vs. evidence: Courts may “notice” certain facts not subject to reasonable dispute (e.g., court filings, public records), but they are not required to treat litigants’ attachments as evidence at an evidentiary hearing—especially where the court has ordered a formal exhibit process. Failing to follow the process can keep key documents out of the record.
• Waiver of appellate issues: An appellant must specifically challenge every independent basis for the adverse judgment. If the lower court gave two separate reasons for its ruling, and the appellant challenges only one, the appeal fails—even if the unchallenged ground is debatable.

What the Court Did Not Decide

• Existence, enforceability, and scope of the arbitration agreement: The court did not decide whether any retainer agreement bound the parties to arbitrate this fee dispute or whether the clause extended to disputes between former co-counsel.
• Core status and ultimate FAA–Bankruptcy Code conflict: The court did not reach whether the fee dispute is core, whether arbitration must yield in such settings, or the exact contours of bankruptcy courts’ discretion post-McMahon.
• Standard of review for decisions to deny arbitration in core proceedings: The court noted other circuits’ abuse-of-discretion review but left the Sixth Circuit’s definitive stance unresolved.

Conclusion

The Sixth Circuit’s decision in Cummings v. Keefer underscores a powerful and practical lesson: in bankruptcy-driven arbitration disputes, preservation is paramount. Appellants who seek to compel arbitration must ensure the agreement is properly in evidence and must challenge each independent basis for the lower court’s ruling, including any bankruptcy-conflict analysis. The court’s “double-waiver” holding is the opinion’s most salient contribution; it channels the litigation toward disciplined compliance with procedural orders and rigorous appellate briefing.

While the court left unresolved larger questions about the interplay between the FAA and the Bankruptcy Code in core proceedings, it reaffirmed that § 16(a)(1) grants immediate appellate access when arbitration is denied. For now, the message to practitioners is clear: follow the bankruptcy court’s evidentiary rules to the letter, develop the full FAA–Bankruptcy Code argument on the record, and on appeal confront every rationale supporting the order you seek to overturn. Failing to do so will end the case before it begins—just as it did here.