Mass Torts

Alexandria, Va. — The Winter 2023 edition of the American Bankruptcy Institute (ABI) Law Review (Volume 31, No. 1) features two articles examining the hot-button issue of third-party releases in recent chapter 11 proceedings. Profs. Jeanne L. Schroeder and David Gray Carlson of the Benjamin N. Cardozo School of Law (New York) open the issue with their piece, “Third Party Releases Under the Bankruptcy Code After Purdue Pharma,” which analyzes the plan confirmed in the landmark case — specifically, the plan’s purported release of derivative claims. They also discuss the subsequent reversal of the bankruptcy court’s confirmation order and the current unsettled state of the case, as well as what role, if any, that jurisdiction plays in the confirmability of a plan of reorganization.

Stephen W. Sather of Barron & Newburger, PC (Austin, Texas) provides the second article, “The Controversial Role of Third-Party Releases in Bankruptcy.” In his piece, Sather acknowledges the prominent role of third parties in bankruptcy and breaks down the statutory authority providing for different types of third-party provisions and, most significantly, third-party releases. He notes that while third-party releases are a significant and valuable tool within bankruptcy, the stakes are high, and Sather recommends several modest-but-powerful legislative reforms that could provide clarity and consistency to third-party provisions that draw on settled procedural law.

Other articles included in the Winter 2023 ABI Law Review include:

• “The Benefits of Hindsight: Determining Whether a Receipt of Benefits Is a Necessary Element of the Fraud Exception to Discharge,” by Daniel M. Tavera, law clerk to Hon. John P. Gustafson of the U.S. Bankruptcy Court for the Northern District of Ohio (Toledo).
• “A Singular Test for Automatic Perfection of Accounts and Payment Intangibles,” by Jonathan A. Marcantel, an associate professor of law at Charleston School of Law (Charleston, S.C.).
• “You Get What You Give: An Analytical Approach to Critical Vendor Motions and How Bankruptcy Courts’ Treatment of Critical Vendors May Affect Their Chapter 11 Filings,” by former ABI Law Review Executive Articles Editor and recent St. John’s University School of Law LL.M. Graduate Alexander Cirkovic Koban, who most recently clerked for Hon. Jil Mazer-Marino of the U.S. Bankruptcy Court for the Eastern District of New York (Brooklyn).

ABI’s Law Review, published in conjunction with St. John’s University School of Law in Jamaica, N.Y., is among the most cited and respected scholarly publications in the bankruptcy community. Now in its 31st year, it has the largest circulation of any bankruptcy law review. Past issues of the Law Review have focused on a variety of timely insolvency issues, including chapter 11 reform, distressed sectors, single-asset cases, consumer bankruptcy, revised Article 9 of the Uniform Commercial Code and other topics.

Members of the press looking to obtain any of the articles from the Winter 2023 issue should contact John Hartgen at 703-894-5935 or [email protected].

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ABI is the largest multi-disciplinary, nonpartisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues. The ABI membership includes nearly 10,000 attorneys, accountants, bankers, judges, professors, lenders, turnaround specialists and other bankruptcy professionals, providing a forum for the exchange of ideas and information. For additional information on ABI, visit www.abiworld.org. For additional conference information, visit http://www.abi.org/calendar-of-events.