Friday, December 17, 2021

SDNY Vacates Bankruptcy Court Order Giving Immunity to Sackler Family

Yesterday, U.S. District Judge Colleen McMahon (S.D.N.Y.) issued a decision vacating the bankruptcy judge’s earlier order (covered here) that had given individual members of the Sackler Family immunity from civil lawsuits relating to the opioid epidemic. Here are some excerpts from the opinion’s introduction:

The Plan confirmed by the Bankruptcy Court extinguishes all civil claims against the Sacklers that relate in any way to the operations of Purdue – including claims on which certain members of the Sackler family could be held personally liable to entities other than Purdue (principally the various states). These claims could not be released if the Sacklers were themselves debtors in bankruptcy.  ***

The great unsettled question in this case is whether the Bankruptcy Court – or any court – is statutorily authorized to grant such releases. This issue has split the federal Circuits for decades. While the Circuits that say no are united in their reasoning, the Circuits that say yes offer various justifications for their conclusions. And – crucially for this case – although the Second Circuit identified the question as open back in 2005, it has not yet had occasion to analyze the issue. Its only guidance to the lower courts, uttered in that 2005 opinion, is this: because statutory authority is questionable and such releases can be abused, they should be granted sparingly and only in “unique” cases. ***

Aided by superb briefing and argument on both sides of the question, and by extended ruminations on the subject by several esteemed bankruptcy judges of our own District – Judge Drain not the least – this Court concludes that the Bankruptcy Code does not authorize such nonconsensual non-debtor releases: not in its express text (which is conceded); not in its silence (which is disputed); and not in any section or sections of the Bankruptcy Code that, read singly or together, purport to confer generalized or “residual” powers on a court sitting in bankruptcy.

Download In re Purdue Pharma 12-16-21


December 17, 2021 in Federal Courts, Recent Decisions | Permalink | Comments (0)

Thursday, December 16, 2021

SCOTUS Cert Grants: Torres v. Texas Department of Public Safety; Viking River Cruises v. Moriana

The Supreme Court granted certiorari yesterday in two interesting cases.

Torres v. Texas Department of Public Safety involves the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). It presents the question “whether Congress has the power to authorize suits against nonconsenting states pursuant to its War Powers.”

You can find the Torres cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

Viking River Cruises, Inc. v. Moriana involves the effect of the Federal Arbitration Act on the California Private Attorneys General Act (“PAGA”). It presents the question: “Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”

You can find the Viking River Cruises cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.





December 16, 2021 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, December 13, 2021

Call for Papers: Seventh Annual Civil Procedure Workshop (Cardozo Law School, May 19-20, 2022)

Here is the call for papers for the Seventh Annual Civil Procedure Workshop, courtesy of Alex Reinert and Myriam Gilles:

We are excited to announce the Seventh Annual Civil Procedure Workshop will be hosted by Cardozo Law School in New York City on May 19-20, 2022.  

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience.  Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2020 include Pamela Bookman, Maureen Carroll, Zachary Clopton, Brooke Coleman, Myriam Gilles, David Marcus, Elizabeth Porter, Alexander Reinert, and Diego Zambrano. 

We welcome all civil procedure scholars to attend. Please register for the conference here (if the link does not work please use the following address:  Those wishing to present a paper for discussion should submit a two-page abstract by February 11, 2022, using the same registration site:  While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 18, 2022.

The CPW will provide meals for registrants.  Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. If you have any questions, please feel free to contact Alex Reinert ([email protected]) or Myriam Gilles ([email protected]).


Download CPW7 Call for Papers 12.10.21



December 13, 2021 in Conferences/Symposia | Permalink | Comments (0)

Friday, December 10, 2021

SCOTUS Cert Grants on Arbitration

The Supreme Court followed up today’s decisions in the Texas abortion cases with some interesting grants of certiorari on arbitration.

Southwest Airlines Co. v. Saxon presents the question: “Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate ‘transportation workers’ exempt from the Federal Arbitration Act.” You can find the cert-stage briefing in Southwest—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

The Court also granted certiorari in two cases—which it proceeded to consolidate—that raise an issue regarding the relationship between 28 U.S.C. § 1782(a) and arbitration. (The Court had already granted certiorari on this issue in an earlier case, but that case was taken off the calendar back in September). The two new cases are:

ZF Automotive US, Inc. v. Luxshare, Ltd., which presents the question: “Whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of United States courts to render assistance in gathering evidence for use in ‘a foreign or international tribunal,’ encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the Fourth and Sixth Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the Second, Fifth, and Seventh Circuits have held.”

AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, which presents the question: “Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a ‘foreign or international tribunal’ under 28 U.S.C. § 1782(a) when the arbitral panel does not exercise any governmental or quasi-governmental authority.”

Here are the SCOTUSblog links for ZF Automotive and AlixPartners.

And here are the Supreme Court website links for ZF Automotive and AlixPartners.






December 10, 2021 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Decisions in Texas Abortion Cases: United States v. Texas and Whole Woman's Health v. Jackson

Today the Supreme Court issued its decisions in two cases involving Texas’s abortion law, S.B. 8 (covered earlier here).

In United States v. Texas, the Court issued a one-page per curiam order dismissing the writ of certiorari as improvidently granted and denying the application to vacate the stay. Justice Sotomayor dissents.

In Whole Woman’s Health v. Jackson, the Court issued a fractured decision that does permit some of the abortion providers’ claims to go forward. Here’s the headcount for the various opinions:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. ALITO, KAVANAUGH, and BARRETT, JJ., joined that opinion in full, and THOMAS, J., joined except for Part II–C. THOMAS, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.

Part IV of Justice Gorsuch’s opinion provides this summary:

The petitioners’ theories for relief face serious challenges but also present some opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.



December 10, 2021 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, December 3, 2021

Bookman on Summers on Eviction Procedure As Civil Probation

Today on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Circumventing Procedure in Eviction Court. Pam reviews Nicole Summers’ recent article, Civil Probation.




December 3, 2021 in Recent Scholarship, State Courts, Weblogs | Permalink | Comments (0)