On June 27, 2024, the U.S. Supreme Court issued its much-anticipated decision in Harrington v. Purdue Pharma L.P. The issue before the Court was whether the Bankruptcy Code permits nondebtors to obtain a release of third-party claims through a debtor’s Chapter 11 plan of reorganization. An issue that had divided the Circuit Courts of Appeals. The nondebtors set to receive releases under Purdue’s plan were members of the Sackler family — the owners of Purdue Pharma — and their other entities.
Since the first Johnson & Johnson talc bankruptcy was filed in 2021, Judge Michael Kaplan has faced countless disagreements in the US Bankruptcy Court. These range from discovery fights, disputes over administration of tens of thousands of individual claims and all-out conflict over the total amount in controversy.
On June 15, 2023, the United States Supreme Court held that “the Bankruptcy Code unambiguously abrogates the sovereign immunity of all governments, including federally recognized Indian tribes.”1 In other words, Native American Tribes' sovereign immunity does not shield them from suits brought by debtors who declare bankruptcy.
The U.S. Supreme Court recently issued its latest bankruptcy opinion in MOAC Mall Holdings LLC v. Transform Holdco LLC, holding that the Bankruptcy Code’s rule against invalidating 363 sales after appeal is not an iron-clad jurisdictional bar, but rather a mere statutory limitation.[1]
Just hours after the United States Bankruptcy Court for the District of New Jersey entered an order dismissing the Chapter 11 Case of Johnson & Johnson subsidiary, LTL Management, as a bad faith filing, LTL filed for Chapter 11 protection again in the same Bankruptcy Court.
Delaware Judge Brendan Shannon has joined calls for reforming Section 546(e) of the bankruptcy code, echoing concerns that the section’s safe harbor from fraudulent transfer liability has allowed investors to “loot privately held companies to the detriment of their non-insider creditors with effective impunity.”[1]
In a decision that once again evidences the Fifth Circuit’s strong stance on the finality of asset sales in bankruptcy absent a stay of the applicable order, on March 8, 2023 the United States District Court for the Southern District of Texas published a memorandum opinion and order affirming a bankruptcy court’s exercise of Bankruptcy Code provisions to strip subrogation rights of certain sureties (the “Sureties”) against an asset purchaser.
In a decision that may provide much-needed boundaries around the permissibility of debtors created from “out-of-the-box” prepetition corporate transactions, on January 30, 2023, the United States Court of Appeals for the Third Circuit issued a unanimous opinion dismissing Johnson & Johnson subsidiary LTL Management, LLC’s (“LTL”) chapter 11 case pending in the United States Bankruptcy Court for the District of New Jersey as not being filed in good faith.1
On January 13, 2023, the Supreme Court granted the Lac du Flambeau Band of Lake Superior Chippewa Indians’ Petition for a Writ of Certiorari to resolve the split of circuits on whether Section 106 of the Bankruptcy Code evinces Congress’ unequivocal intent to abrogate Native American Tribes’ sovereign immunity.1
In late December, the U.S. District Court for the District of Delaware issued an opinion in In re: Mallinckrodt PLC affirming the Mallinckrodt bankruptcy court's November 2021 decision that the debtor could discharge certain post-petition, post-confirmation royalty obligations for the sale of the company's Acthar gel.
The district court's affirmation serves as a reminder to holders of intellectual property that a debtor's fresh start under the U.S. Bankruptcy Code could trump royalty obligations that are found to be contingent claims arising as of the time of the transaction.