Professor Ralph Brubaker published a new article on SSRN, titled “The Erie Doctrine, Code Common Law, and Choice-of-Law Rules in Bankruptcy.” The article was also featured in the Harvard Law School Bankruptcy Roundtable.
Professors Ralph Brubaker and Robert Lawless were both featured in the commentary featured on the American Bankruptcy Institute’s blog, Rochelle’s Daily Wire. Their commentary discussed the most recent decision in the ongoing controversy over the propriety and legitimacy of so-called “Texas Two-Step” mass-tort bankruptcies. The decision, from the Fourth Circuit, continues to stoke opinion and Lawless writes that it sets up “a Supreme Court decision in the coming years.”
A new paper from Professor Ralph Brubaker, “Assessing the Legitimacy of the ‘Texas Two-Step’ Mass-Tort Bankruptcy,” was recently featured on the Harvard Law School Bankruptcy Roundtable. Brubaker’s article analyzes the “Texas Two-Step” maneuver as courts grapple with legal challenges to the fundamental legitimacy of it. The paper was also listed on SSRN’s Top Downloads for Bankruptcy, Reorganization & Creditors eJournal and for Law & Society: Private Law-Financial Law eJournal.
Professor Ralph Brubaker ’89 and Jamie Sprayregen ’85 had a collegial debate about current bankruptcy issues at the National Conference of Bankruptcy Judges in Chicago in late September. The conversation was moderated by Bankruptcy Judge Michelle Harner.
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.
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.”
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.
Bayer AG is considering employing the controversial legal tactic known as the Texas Two-Step bankruptcy to address the thousands of lawsuits alleging that its Roundup weedkiller causes cancer. The strategy, which involves splitting assets and liabilities into separate units, with the unit burdened by liabilities being placed into bankruptcy to facilitate a global settlement, is an area of expertise for Professor Ralph Brubaker. Speaking to Bloomberg, he suggested that although the courts may ultimately refuse this tactic, bankruptcy could provide Bayer with time to propose a settlement while halting ongoing litigation.
A recent $2.5 billion bankruptcy settlement between the Boy Scouts of America and childhood sexual abuse survivors seemed to put a close to an awful chapter in the victims lives, until the settlement was halted by the U.S. Supreme Court due to concerns over the legality of mandatory releases of claims against nondebtor third parties. Writing about the settlement, Law360 highlights broader debates about the fairness of handling mass-tort claims in bankruptcy courts, where settlements may favor one side over the other and quotes Professor Ralph Brubaker, and expert in this area. The article explores the history of such releases, their impact on mass-tort litigation, and ongoing legal disputes over their validity.
The United States Bankruptcy Court Western District of North Carolina recently denied a motion to dismiss the bankruptcy of companies implicated in asbestos liability cases, citing and quoting from several articles by Professor Ralph Brubaker. The case involves Texas Two-Step mass-tort bankruptcy, a topic in which Brubaker has researched and published extensively. The decision cites to and quotes from “On the Nature of Federal Bankruptcy Jurisdiction: A General Statutory and Constitutional Theory,” from the William & Mary Legal Review; “Explaining Katz’s New Bankruptcy Exception to State Sovereign Immunity: The Bankruptcy Power as a Federal Forum Power,” from the American Bankruptcy Institute Legal Review; and “The Texas Two-Step and Mandatory Non-Opt-Out Settlement Powers,” in the Harvard Law School Bankruptcy Roundtable.