Consensus remains elusive on the two major questions concerning the application of bankruptcy law in mass tort cases. In the past few months, at least five major decisions have addressed the significant issues of the availability of third-party releases and the two-step bankruptcies. Appeals have been filed or are threatened. In the meantime, the authors of a University of Chicago Law Review article argue that, as a matter of public policy, both should be available with court safeguards.

Bankruptcy filings, particularly Chapter 11 bankruptcy reorganization filings, are on a significant rise. Approximately 3,000 commercial Chapter 11 bankruptcy cases were filed in the first six months of 2023, an increase of more than 60 percent over the prior year. These cases include the most prominent bankruptcy filings—often in Delaware, Southern District of Texas or Southern District of New York.