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[Purdue Pharma Bankruptcy Series] Mass Torts, The Bankruptcy Power, and Constitutional Limits on Mandatory No-Opt-Outs Settlements


Editor’s Note: We’re pleased to continue our series of original content on the implications of the Supreme Court’s ruling in the Purdue Pharma bankruptcy. Click here for background on the case and the immediate effects of the decision. View this week’s post-SCOTUS coverage here, here, and here.

Although this article was largely written before the Supreme Court issued its decision, it has been updated to reflect additional implications of the ruling, and it also discusses broader issues that remain in question despite the ruling.


By: Professor Ralph Brubaker (James H.M. Sprayregen Professor of Law, University of Illinois College of Law)

Editor’s Note: The author submitted an amicus brief supporting the petitioner, William Harrington, in the United States Supreme Court, available here, and discussed on the Bankruptcy Roundable here.

Professor Ralph Brubaker

This essay explores the constitutional tensions produced by aggressive efforts to resolve mass-tort liability through federal bankruptcy proceedings, as illustrated by nonconsensual nondebtor (or third-party) releases and the so-called Texas Two-Step maneuver. The goal of both of those devices is to impose a mandatory no-opt-outs settlement of (and that imposes a hard cap on) a defendant’s mass-tort obligations—a prospect that is otherwise impermissible and unconstitutional. The very nature of bankruptcy relief necessitates that certain constitutional protections for injured tort victims’ claims (such as the due process opt-out right and full Seventh Amendment jury trial rights) are inapplicable in federal bankruptcy proceedings. Bankruptcy also provides a basis for federal jurisdiction over all victims’ state-law claims that would not otherwise exist. All told, then, bankruptcy appears to be the Holy Grail for mass-tort defendants—a means of forcing all tort claimants (both present and future) into a mandatory no-opt-outs settlement process in one (federal) court. Unless bankruptcy is to become a facile end-run around multiple constitutional protections for both individual tort claimants and state sovereignty, as well as the structural constitutional limitations on the jurisdictional powers of the federal courts, the “subject of Bankruptcies” (within the meaning of the Constitution’s Bankruptcy Clause) must be limited by a requirement of necessity for bankruptcy relief and its mandatory limited-fund treatment of claimants, consistent with the functional justifications for that relief.

Click here to read the full article.

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July 19, 2024
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Categories: Bankruptcy, Chapter 11, Mass Torts, Purdue Pharma Bankruptcy, Supreme CourtTags: Bankruptcy, Bankruptcy Courts, Chapter 11, Harrington v. Purdue Pharma, Purdue Pharma, Ralph Brubaker, Supreme Court, syndicated, third party release

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