SCOTUS in Purdue: Non-Debtor Third-Party Releases Are Not Permitted in Chapter 11 Plans Without Consent

Background and Procedural History

Justice Gorsuch, writing for the majority of the Court,² explained that the opioid epidemic represents “one of the largest public health crises in this nation’s history,” and has “cost the country between $53 and $72 billion annually.” The Sackler family owned and controlled Purdue Pharma, L.P. (“Purdue”), which sold OxyContin with “deceptive marketing practices” indicating that OxyContin was “less addictive” and “less subject to abuse than other pain medications.” After a Purdue affiliate pleaded guilty to a federal felony for the misbranding, thousands of civil lawsuits were filed against Purdue for injuries stemming from opioid addiction. In the face of these suits, the Sacklers began “milking” as much as 70% of Purdue’s revenue annually, totaling approximately $11 billion, much of which the Sacklers transferred to their overseas trusts and family-owned companies.

On September 15, 2019, Purdue filed Chapter 11 bankruptcy in the Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) and filed a plan that included a settlement with the Sacklers pursuant to which the Sacklers agreed to “return to Purdue’s bankruptcy estate $4.325 billion of the $11 billion they had withdrawn from the company in recent years,” in payments “spread out over a decade.” In return, the Sacklers sought a non-consensual release from non-debtor third parties of current and future claims against the Sacklers, as well as an injunction of claims against them by anyone who might sue Purdue. While most creditors who voted on the Purdue plan of reorganization voted in favor of the plan, “fewer than 20% of eligible creditors participated.” Thousands of creditors voted against the plan, and the United States Trustee, eight States, the District of Columbia, the City of Seattle, and various Canadian municipalities and tribes also objected.  

On September 17, 2021, the Bankruptcy Court confirmed the Purdue plan of reorganization.³

On December 16, 2021, the United States District Court for the Southern District of New York (the “District Court”) vacated the Bankruptcy Court’s confirmation of Purdue’s plan, holding that the Bankruptcy Code does not authorize bankruptcy courts to approve non-consensual releases of direct claims of non-debtor third parties against other non-debtors (such as the Sacklers) in connection with the confirmation of a plan of reorganization.⁴

While the District Court’s ruling was on appeal to the Second Circuit Court of Appeals (the “Second Circuit”), the Sacklers agreed to contribute an additional $1.175 billion to $1.675 billion to the Purdue estate, which resulted in most parties who had objected to the plan dropping their objections.

On May 30, 2023, a divided panel of the Second Circuit reversed the District Court and held that Bankruptcy Code §§ 105(a) and 1123(b)(6) authorized the Bankruptcy Court’s approval of the non-consensual non-debtor third-party releases.⁵

The Supreme Court’s Ruling

In the Opinion, the Court reversed the Second Circuit and remanded the case.

The Opinion first addressed the issue of “whether a court in bankruptcy may effectively extend to nondebtors the benefits of a Chapter 11 discharge usually reserved for debtors.” The majority first observed that “[a] debtor can win a discharge of its debts if it proceeds with honesty and places virtually all its assets on the table for its creditors.” But, the Court explained that such a discharge “operates only for the benefit of the debtor against its creditors and ‘does not affect the liability of any other entity.’”⁶ Yet, the Court observed that the Sacklers sought “what essentially amounts to a discharge” even though they “have not filed for bankruptcy and have not placed virtually all their assets on the table for distribution to creditors.”

“For an answer” to the question of whether such an effective discharge can be included in a Chapter 11 plan, the Court “turn[ed] to § 1123” of the Bankruptcy Code, which governs provisions that must or may be included in a plan of reorganization. Specifically, the Court focused on Bankruptcy Code § 1123(b)(6), which provides that a plan may “include any other appropriate provision not inconsistent with the applicable provisions” of the Bankruptcy Code.⁷ The Court explained that this “catchall phrase” is to be construed consistently with the “surrounding context” such that it includes “only objects similar in nature” to subparts (1) through (5) of § 1123(b),⁸ applying the canon of statutory construction that “seeks to afford a statute the scope a reasonable reader would attribute to it.”⁹ Where the Court reasoned that subparts (1) through (5) all “concern the debtor,” the Court said “the catchall cannot be fairly read to endow a bankruptcy court with the ‘radically different’ power to discharge the debts of a nondebtor without the consent of affected nondebtor claimants.”

The Opinion also set forth additional reasons in support of the ruling. First, reading Bankruptcy Code § 1123(b)(6) to include non-consensual non-debtor releases would defy Bankruptcy Code provisions that permit only a debtor to be discharged.¹⁰ Second, to receive a discharge, a debtor must come forward with virtually all of its assets,¹¹ and a debtor’s discharge is limited to claims not based on fraud or alleging willful and malicious injury and cannot “‘affect any right to trial by jury’ a creditor may have ‘with regard to a personal injury or wrongful death tort claim.’”¹² The Court found that the Sackler releases transgress these limitations. Third, Bankruptcy Code § 524(g) expressly permits courts to enjoin claims against third parties without their consent in the context of asbestos bankruptcy cases, but only in that “one context.”¹³

The majority addressed the dissent’s¹⁴ “resort to [the] policy argument” that the plan, including the Sackler releases, is the only “viable path” for creditors to recover. However, with so much legal exposure, the Court pointed out, the Sacklers may be induced to negotiate consensual releases on terms more favorable to the opioid victims (particularly on the heels of their previous agreement to increase their contribution to the plan by more than $1 billion to obtain the consent of certain objecting States). Moreover, endorsing the Sacklers’ maneuver here could provide a “roadmap for corporations and wealthy individuals to misuse the bankruptcy system in future cases to avoid mass-tort liability.”

“[I]n the end,” the Court explained, it is Congress that has the “power, consistent with the Constitution, to make policy judgments about the proper scope of a bankruptcy discharge,” and “[s]omeday, Congress may choose to add to the [B]ankruptcy [C]ode special rules for opioid-related bankruptcies as it has for asbestos-related cases. Or it may choose not to do so”—either way, the choice is for “Congress to make.”

As for the future of the Purdue case on remand, counsel for Purdue promptly requested, in a letter to the Bankruptcy Court filed on the docket, a public, on-the-record status conference at which they intend to request that mediation efforts in the case resume in an effort to reach an agreement consistent with the Opinion as well as a preliminary injunction to facilitate those efforts.¹⁵

Key Takeaways

• The Court conclusively settled the circuit split: the Bankruptcy Code does not authorize non-consensual non-debtor third-party releases.¹⁶
• The Opinion expressly does not impact consensual non-debtor third-party releases.
• The Court explicitly neither decided nor provided guidance as to what constitutes consent with respect to non-debtor third-party releases.
• The Opinion does not apply to the settlement or release of estate causes of action.
• The Opinion does not address Chapter 11 plans that provide for the full satisfaction of claims against a third-party non-debtor.
• The Opinion explicitly declined to address whether its holding would justify unwinding Chapter 11 plans that have already become effective and been substantially consummated.
• The Court did not expressly address whether the Opinion applies to the exculpation of bankruptcy professionals or other non-debtors as part of a Chapter 11 plan.¹⁷
• The authors may be contacted for additional key takeaways.   

¹ Harrington v. Purdue Pharma L.P., No. 23–124, __ S.Ct. __, 2024 WL 3187799, at *11 (June 27, 2024) (the “Opinion”).

² Justice Gorsuch was joined by Justices Thomas, Alito, Barrett, and Jackson.

³ In re Purdue Pharma L.P., 633 B.R. 53 (Bankr. S.D.N.Y. 2021). 

⁴ In re Purdue Pharma L.P., 635 B.R. 26 (S.D.N.Y. 2021).

⁵ See In re Purdue Pharma L.P., 69 F.4th 45 (2d Cir. 2023). For a more comprehensive review of the Second Circuit’s opinion, see “In re Purdue Pharma L.P.: Second Circuit Reverses S.D.N.Y. and Holds Bankruptcy Court Has Subject Matter Jurisdiction and Statutory Authority to Approve Sackler Family Releases,” V&E Restructuring & Reorganization Update, June 6, 2023, https://www.velaw.com/insights/in-re-purdue-pharma-l-p-second-circuit-reverses-s-d-n-y-and-holds-bankruptcy-court-has-subject-matter-jurisdiction-and-statutory-authority-to-approve-sackler-family-releases/.

⁶ Opinion at *5 (citing 11 U.S.C. § 524(e)).

⁷ Id. at *6 (quoting 11 U.S.C. § 1123(b)(6)).

⁸ See also 11 U.S.C. § 1123(b)(1)–(5) (permitting a plan to include provisions that (1) impair or leave unimpaired any class of claims, secured or unsecured, or of interests; (2) subject to section 365 of title 11, provide for the assumption, rejection, or assignment of any executory contract or unexpired lease of the debtor not previously rejected; (3) provide for (A) the settlement or adjustment of any claim or interest belonging to the debtor or the estate or (B) the retention and enforcement by the debtor/trustee/estate representative of any such claim or interest; (4) provide for the sale of all or substantially all of the property of the estate, and the distribution of the proceeds of such sale among holders of claims or interests; or (5) modify the rights of holders of secured claims (with certain exceptions) or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims).

⁹ Opinion at *7 (explaining that, “for example, when a statute sets out a list discussing ‘cars, trucks, motorcycles, or any other vehicles,’ we appreciate that the catchall phrase may reach similar landbound vehicles (perhaps including buses and camper vans), but it does not reach dissimilar ‘vehicles’ (such as airplanes and submarines)”) (citing McBoyle v. U.S., 283 U.S. 25, 26–27 (1931)).

¹⁰ Id. at *9 (citing 11 U.S.C. §§ 524(a)(1)–(2) and (e), 727(a)–(b), 1129(b)(1), 1141(a) and (d)(1)(A)).

¹¹ Id. (citing 11 U.S.C. §§ 541(a)(1), 548).

¹² Id. (citing 11 U.S.C. §§ 523(a)(2), (4), (6), and quoting 11 U.S.C. § 1141(a)).

¹³ Id. (citing 11 U.S.C. § 524(g)). In addition, the Court pointed out that pre-Bankruptcy Code practice also “generally reserved the benefits of discharge to the debtor who offered a fair and full surrender of its property.” Id. at *10 (internal quotation omitted). The Court opined that “[s]urely, if Congress had meant to reshape traditional practice so profoundly in the present [B]ankruptcy [C]ode, extending to the courts the capacious new power the plan proponents claim, one might have expected it to say so expressly” in the Bankruptcy Code. Id.

¹⁴ A dissenting opinion was filed by Justice Kavanaugh, which was joined by Chief Justice Roberts and Justices Sotomayor and Kagan. The dissent took the position that Bankruptcy Code § 1123(b)(6) should be read more broadly to include non-debtor releases like the Sackler releases in light of the purpose of the bankruptcy system, which is “designed to ensure fair and equitable recovery for creditors.”  Indeed, the dissent called the plan “a shining example of the bankruptcy system at work” that solved a “collective-action problem and prevent[ed] a race to the courthouse by individual creditors who, if successful, could obtain all of a company’s assets.”

¹⁵ See In re Purdue Pharma L.P., No. 19-23649-SHL (Bankr. S.D.N.Y. Jun. 27, 2024) [D.I. 6498] (letter).

¹⁶ Other than as explicitly provided for in the asbestos context. See 11 U.S.C. § 524(g).

¹⁷ Notably, there is still a pending petition for certiorari before the Supreme Court on the issue of whether a broad exculpation provision violates Bankruptcy Code § 524(e). See Highland Cap. Mgmt., L.P. v. NexPoint Advisors, L.P., No. 22-631 (pending—certiorari petition briefing was distributed for conference on December 8, 2023).