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Full-Text Articles in Law
Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet
Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet
Faculty Scholarship
Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …
Due Process Discontents In Mass-Tort Bankruptcy, J. Maria Glover
Due Process Discontents In Mass-Tort Bankruptcy, J. Maria Glover
Georgetown Law Faculty Publications and Other Works
No abstract provided.
Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet
Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet
Scholarly Works
Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …
Third-Party Releases Under The Bankruptcy Code After Purdue Pharma, Jeanne L. Schroeder, David G. Carlson
Third-Party Releases Under The Bankruptcy Code After Purdue Pharma, Jeanne L. Schroeder, David G. Carlson
Faculty Articles
The biggest bankruptcy case ever (as measured by unsecured claims against a debtor-in-possession) is In re Purdue Pharma, LLC. The bankruptcy court affirmed a plan discharging the Sackler family (equity owners and often officers of Purdue) of all “derivative” claims that belonged to the debtor-in-possession. The settlement was bought for a substantial sum payable over time by the Sacklers. A debtor-in-possession is the sole owner of a derivative claim and has the power to bind all the creditors to a settlement. Under the Bankruptcy Code, a plan discharging derivative claims is confirmable. In fact, as we will, show, a great …
Bankruptcy Grifters, Lindsey Simon
Bankruptcy Grifters, Lindsey Simon
Scholarly Works
Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court’s tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment.
But courts have also allowed the Bankruptcy Code’s mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These “bankruptcy grifters” …
Catholic Dioceses In Bankruptcy, Marie T. Reilly
Catholic Dioceses In Bankruptcy, Marie T. Reilly
Catholic Dioceses in Bankruptcy
The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based …
Bankruptcy Trusts, Transparency And The Future Of Asbestos Compensation, S. Todd Brown
Bankruptcy Trusts, Transparency And The Future Of Asbestos Compensation, S. Todd Brown
Journal Articles
As we enter the fifth decade of asbestos personal injury litigation, much of the debate over its immediate future centers on the operations of bankruptcy trusts and their relationship to the tort system. Roughly 100 companies have entered bankruptcy as a result of their unsustainable asbestos liabilities, and, from these bankruptcies, approximately 60 trusts have been established or are in the process of being established. Some critics contend that the trust system is plagued by fraud and abuse; allowing plaintiffs' lawyers to obtain compensation from the trusts for fraudulent claims and to evade relevant discovery obligations under applicable state law. …
Overlooking Tort Claimants' Best Interests: Non-Debtor Releases In Asbestos Bankruptcies , Joshua M. Silverstein
Overlooking Tort Claimants' Best Interests: Non-Debtor Releases In Asbestos Bankruptcies , Joshua M. Silverstein
Faculty Scholarship
The asbestos crisis has spawned the development of extraordinary new remedies. One of the most dramatic and controversial is known as a "non-debtor release," a bankruptcy order extinguishing claims against a party who has not itself filed for bankruptcy. Also known as a "third-party release," this form of relief first found acceptance in early asbestos insolvencies. Since that time, Congress has passed a statute—§ 524(g) of the Bankruptcy Code—that expressly authorizes non-debtor releases in asbestos reorganizations. Powerful remedies are subject to abuse, and third-party releases are no exception. In this article, I argue that bankruptcy courts and litigants have overlooked …
The Effect Of Joint And Several Liability Under Superfund On Brownfields, Howard F. Chang, Hilary A. Sigman
The Effect Of Joint And Several Liability Under Superfund On Brownfields, Howard F. Chang, Hilary A. Sigman
All Faculty Scholarship
In response to claims that the threat of environmental liability under the Superfund law deters the acquisition of potentially contaminated sites (or "brownfields") for redevelopment, the federal government has adopted programs to protect purchasers from liability. This protection may be unwarranted, however, if sellers can simply adjust property prices downward to compensate buyers for this liability. We present a model of joint and several liability under Superfund that allows us to distinguish four different reasons that this liability may discourage the purchase of brownfields. The previous literature has overlooked the effects that we identify, which all arise because a sale …
Private Liability For Reckless Consumer Lending, John A. E. Pottow
Private Liability For Reckless Consumer Lending, John A. E. Pottow
Articles
Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the increasing rate at which individuals have been filing for bankruptcy. Taking into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. Instead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of "bad credit"-or credit extended to individuals even though there is a reasonable likelihood that the individual will be …
The Manville Bankruptcy: Treating Mass Tort Claims In Chapter 11 Proceedings, Robert Jones
The Manville Bankruptcy: Treating Mass Tort Claims In Chapter 11 Proceedings, Robert Jones
Journal Articles
The reorganization petition filed by the Manville Corporation, the nation’s largest asbestos manufacturer in 1982 is an attempt by a healthy and solvent corporation to declare bankruptcy. It differs greatly from a traditional reorganization case, which involves a debtor that knows who its creditors are and how much it owes them. Manville does not know who the majority of its creditors are or the amount of its potential tort liability. It is instead using the 1978 Bankruptcy Reform Act's Chapter 11 reorganization provisions to seek shelter from a huge but speculative tort liability. In doing so Manville presents a major …