A new article from Professor Ralph Brubaker has been published on the Yale Law Journal Forum. The article, "Mandatory Aggregation of Mass Tort Litigation in Bankruptcy," is a Response to "Bankruptcy Grifters" by Lindsey Simon. The abstract follows:
This Response to Bankruptcy Grifters by Lindsey Simon shares her concerns about the inequities of a solvent entity, which has not filed bankruptcy, discharging its mass tort liability in the bankruptcy proceedings of a codefendant. Such a nondebtor discharge, effectuated through a so-called nondebtor release and channeling injunction, imposes upon tort victims a mandatory non-opt-out settlement of the released nondebtor’s mass tort liability. Simon’s proposed reforms of nondebtor-release practice do not go far enough. Nondebtor releases are an illegitimate and unconstitutional exercise of substantive lawmaking powers by the federal courts. Moreover, the bankruptcy “necessity” proffered as justifying a mandatory settlement of nondebtors’ mass tort liability—a mandatory settlement that is otherwise impermissible and unconstitutional—is nothing more than pretext. The Supreme Court should resolve the circuit split over the permissibility of nondebtor releases by flatly repudiating them. Bankruptcy can serve as a powerful aggregation process for efficient (and fair) resolution of the mass tort liability of both debtors and nondebtor codefendants even (and especially) without nondebtor releases, particularly if the Supreme Court also clarifies the full expanse of federal bankruptcy jurisdiction.
Read the full article at yalelawjournal.org.