1. This "significant" and "important" question (In re Baltimore Emergency Servs. II, Corp., 432 F.3d 557, 560-561 (4th Cir. 2005)), has sharply divided the lower courts. There is a meaningful conflict regarding whether derivative standing is allowed at all. For example: The practice has been outright forbidden by the Tenth Circuit BAP. United Phosphorous, Ltd. v. Fox (In re Fox), 305 B.R. 912, 914 (B.A.P. 10th Cir. 2004) ("obey[ing] the [Code's] literal language" and disavowing contrary decisions from other circuits). A four-judge dissent (including then-Judge Alito) flatly rejected the doctrine when it was considered by the en banc Third Circuit. Official Comm. of Unsecured Creditors of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 580 (3d. Cir. 2003). The Fourth Circuit sharply limited the practice while expressing heavy skepticism it was allowed in the first place. Baltimore Emergency Servs., 432 F.3d at 561 (calling its validity "far from self-evident"). And multiple experts have repudiated the trustee's ability to assign away the Code's rights, while other experts have reached the opposite conclusion. See, e.g., id. at 561 (flagging conflicting commentary).

Even if derivative standing is (somehow) authorized, the circuits disagree over where it is authorized. Some circuits (including the Fifth and Seventh Circuits) flag this as a limited exception solely where a trustee shirks his or her duties and "unjustifiably" refuses to file suit. E.g., In re Consolidated Indus. Corp., 360 F.3d 712, 716 (7th Cir. 2004) ("Bankruptcy law does allow a creditor to bring a derivative claim on behalf of the

Whether a creditors' committee has derivative standing to bring avoidance claims under the Bankruptcy Code when the statute explicitly assigns such power solely to the bankruptcy trustee