Summary:
Rather than summarize a Chapter 11 case in exhaustive detail that both has little directly to do with consumer bankruptcy cases and has been summarized in exhaustive detail elsewhere, here are links to a few of those:
- Justia
- NCBRC: The Supreme Court Holds That the Bankruptcy Code Does Not Authorize a Nondebtor Discharge Without the Consent of the Claimants
- Rochelle's Daily Wire: Supreme Court Reverses Purdue: No Nondebtor, Third-Party, Nonconsensual Releases
- SCOTUSBlog: Supreme Court blocks OxyContin bankruptcy plan
Commentary:
The esjudem generis canon of interpretation arises with fair regularity in interpreting the list heavy statutorily based Bankruptcy Code (with that basis perhaps being why the Supreme Court both seems to love to add bankruptcy case or two to its docket every term and why it then treats those cases like the dogs of that docket), so its application in Harrington should inform bankruptcy courts going forward, whether that is in terms of confirmation (of plans of whatever chapter) or for dismissal of cases under 11 U.S.C. §707(a). See for example, In re Edwards where the bankruptcy court read the list of bases for dismissal there in an expansive manner to include ability to pay.
More specific to the Purdue Pharma case, while the majority opinion holds that the catchall provision of §1123(b)(6) allows that a plan may "include any other appropriate provision not inconsistent with the applicable provisions of this title." (Emphasis added.) To a large extent, however, it seems that the majority reverses this to require that the plan provisions must be consistent with applicable provisions of this title, which is a small linguistic difference but a large procedural one.
While inexplicably little attention was paid by either the majority or the dissent to my frequent complaints on these listservs and communities that the presence of a "co-debtor stay" at 11 U.S.C. §1301 should at least be taken together with the treatment of asbestos related bankruptcies under §524(g) to inform whether, when and how courts should grant relief to non-debtors.
Beyond that, however, this opinion also leaves unaddressed and unrecognized that a similar, but not identical, catchall provision in Chapter 13. 11 U.S.C. §1322(b)(11) provides that a plan may "include any other appropriate provision not inconsistent with this title." Absent from this provision is the requirement that the plan provision in question be inconsistent with the phrase "the applicable provisions". Arguably, this omission (and remember Congress is not, despite appearances to the contrary, a bunch of incompetent monkeys banging away on typewriters, but drafts perfect legislation with unerring intent)
might get the Chapter 13 catchall provision closer to what the dissent desired and the majority in vain required, namely that a Chapter 13 plan can be confirmed if it is not inconsistent with the goals and aims of the Bankruptcy Code without being explicitly tied to other specific statutory language.
Further, the pending Trantham v. Tate case at the 4th Circuit looks to whether a non-standard plan provision, as provided for in Federal Rule of Bankruptcy Procedure 3015(c) and derived from 11 U.S.C. §§ 1321 and 1322(b)(11), can depart from the Local Form Plan terms. That case should also look to something of a compiled esjudem generis, with that "family" include the plan confirmation requirements and options found throughout Chapter 13, but particularly that 11 U.S.C. §1322(b)(9) takes as the default that assets vest in the debtor at confirmation.
To read a copy of the transcript, please see:
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