Business Law News 5 - College of Law

ABI quotes Brubaker on asbestos case

The sun rises over the Illini Union. The Illini Union, which was dedicated in 1941, serves students and the campus in many ways, including housing the Illini Union Hotel, a credit union, a convenience store, information services, CITES (Campus IT) instructional facility, quick-service restaurants, a bowling alley and arcade, student performance spaces, and office space for Registered Student Organizations, student government, Student Legal Services, Student Tenant Union, LGBT Resource Center, and Union administration.

Bankruptcy Judge David S. Jones of New York ruled recently on a chapter 11 plan from cosmetics company Revlon regarding asbestos claims arising from products containing talc. In his ruling, Judge Jones noted that future asbestos claims can be discharged without a trust. In the American Bankruptcy Institute’s Rochelle’s Daily Wire, Professor Ralph Brubaker provided a counterpoint to a University of Chicago professor, claiming that “discharging the claim of a future claimant who has not yet been injured or discovered the injury” is unconstitutional and akin to something from Alice’s Adventures in Wonderland.

Read his full comments here.

Elder Law Journal publishes new article from Kaplan

Professor Richard Kaplan has a new article in the Elder Law Journal, titled “Analyzing the New Planning Opportunities in SECURE 2.0 for Retirement Plan Participants.” The article examines six major changes enacted by the SECURE 2.0 Act of 2022 pertaining to current plan participants in retirement plans. Kaplan notes that the changes continue the pattern of using pension plans to accommodate social initiatives that are sometimes barely related to providing income when plan participants retire.

Read the full article from SSRN.

Brubaker paper cracks SSRN’s Top Ten download list

Professor Ralph Brubaker’s article, “Mass Torts, The Bankruptcy Power, and Constitutional Limits on Mandatory No-Opt-Outs Settlements,” was recently added to SSRN’s Top Ten Download list. The article, published by the Florida State University Business Review, is an examination of “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.”

Download and read the article on SSRN.

Brubaker publishes new article on implications of Purdue Pharma ruling

In the wake of the Supreme Court’s ruling in the Purdue Pharma bankruptcy, Professor Ralph Brubaker—who submitted an amicus brief in the case—published an article in the Harvard Law School Bankruptcy Roundtable on the implications of the ruling and issues that remain unsettled after the ruling. “Unless bankruptcy is to become a facile end-run around multiple constitutional protections for both individual tort claimants and state sovereignty,…the ‘subject of Bankruptcies’ (within the meaning of the Constitution’s Bankruptcy Clause) must be limited by a requirement of necessity for bankruptcy relief,” Brubaker writes.

Read full coverage from the Harvard Law School Bankruptcy Roundtable.

Lawless writes op-ed on venue shopping for Bloomberg

“For any court process to be seen as fair, people must see the judge as unbiased and believe the judge based the decision only on the evidence presented,” Professor Robert Lawless writes in an opinion article published by Bloomberg Law. Though this statement seems uncontroversial, the practice of “venue shopping” for bankruptcy proceedings undermines the credibility of the courts. Lawless writes that some bankruptcy judges have openly admitted wanting to attract large Chapter 11 cases, which makes their decisions seem less than legitimate, a problem that must be remedied.

Read his full op-ed online.

Winship publishes review on JOTWELL

In the world of technology, there is a maxim about the division of labor that states, “The US produces technology and the EU produces rules.” This is the center of a new article by Anu Bradford, which was recently reviewed by Professor Verity Winship. In her review, Winship notes “Bradford’s super-power as a scholar is the ability to take something that has been recognized and analyzed in piecemeal form, and then to enlarge the framework and fundamentally shift how we talk about the area.” By applying this “super-power” to the US-EU technological rights conflict, Bradford creates an article that is “sophisticated, timely…well worth a read.”

Read Winship’s review on JOTWELL.

Winship authors post on suits against private companies brought by shareholders

Professor Verity Winship teaches a class.

In a new blog post published on the Harvard Law School Forum on Corporate Governance, Professor Verity Winship examines a “blindspot in the law and its analysis”: suits brought by investors against the company in which they own shares. Reviewing literature on “unicorn” companies, private companies valued over $1 billion, Winship discovered a few interesting and unique aspects of shareholder suits against these groups. She found such cases are rare and predominantly based on state-law claims, and their rarity may be due to procedural limitations, investment structures, and the absence of market prices, necessitating a new approach to align regulatory frameworks with the realities of modern private companies.

Lawless and Robbennolt: Purdue Pharma, Bankruptcy, and Procedural Justice

Professors Bob Lawless and Jennifer Robbennolt co-authored a blog post for Psychology Today, titled “Purdue Pharma, Bankruptcy, and Procedural Justice.” In the post, they discuss how the Sackler family sought a release in the Purdue Pharma bankruptcy case that would protect them from facing opioid lawsuits, despite not having declared bankruptcy themselves. Many claimants were opposed to a settlement plan and wanted to face the Sacklers in court. The authors argue that psychologists should explore concerns for procedural justice when tort cases are resolved through bankruptcy.

Read the full post.

Kaplan files amicus brief in Fifth Circuit retirement investing case

Professor Richard Kaplan was one of six law professors who filed an amicus curiae brief in the U.S. Court of Appeals, Fifth Circuit case State of Utah et al. v. Julie Su et al. The brief was filed in support of a Biden administration rule allowing retirement advisers to consider environmental, social and governance issues when making decisions for clients, with the professors arguing the move aligns with fiduciary duties to minimize risks and maximize returns for clients. The brief also urged the appeals court to reject a Utah-fronted challenge that argues the rule is inconsistent with the Employee Retirement Income Security Act and investment professionals’ obligations.

Read coverage of the case from Law360 and Bloomberg.

Delaware Bankrupcty Court relies on scholarship from Lawless in opinion

In the U.S. Bankruptcy Court for the District of Delaware, Judge Craig T. Goldblatt relied heavily upon the scholarship of Professor Robert Lawless in his opinion for Yellow Corporation’s Chapter 11 plan. Citing “Reframing Arbitration & Bankruptcy,” Judge Goldblatt ruled that Yellow Corp. must resolve issues in bankruptcy court rather than in arbitration. Speaking to the American Bankruptcy Institution about the decision, Lawless explained “Judge Goldblatt cut through the rhetoric and got it right.”

Read the Bankruptcy Court opinion online.
Read the American Bankruptcy Institute’s examination of the ruling.