Faculty News 30 - College of Law

Rochelle’s Daily Wire analyzes bankruptcy court ruling citing Brubaker

The strength of Professor Ralph Brubaker’s scholarship provided “considerable force” in the mind of Bankruptcy Judge J. Craig Whitley of Charlotte, N.C., and he cited Brubaker’s work extensively when denying a motion to dismiss a pair of “asbestos” chapter 11 cases where the family of companies could pay $250 million in current and future liability. In Rochelle’s Daily Wire from the American Bankruptcy Institute, the decision is analyzed and Brubaker added his own commentary. Though this case does not discuss the Purdue Pharma case before the Supreme Court, the author notes that it has overlap in bankruptcy courts not sanctioning nonconsensual, nondebtor, third-party releases.

U.S. Bankruptcy Court extensively cites Brubaker in denying Texas Two-Step ploy

In late December 2023, U.S. bankruptcy court in North Carolina denied motions to dismiss the Texas Two-Step mass-tort bankruptcy cases of entities created to resolve the asbestos liability of the Trane companies. This type of maneuver involves splitting a company into two, moving the liabilities to one company, and then seek bankruptcy protections to absolve that company of liability. In the opinion (pages 32-39) denying the Trane companies the ability to execute this maneuver, the bankruptcy court extensively cites to and quotes from three of Professors Brubaker’s articles on the subject: (1) “The Texas Two-Step and Mandatory Non-Opt-Out Settlement Powers,” in the Harvard Law School Bankruptcy Roundtable; (2) “Assessing the Legitimacy of the ‘Texas Two-Step’ Mass-Tort Bankruptcy,” in the Bankruptcy Law Letter; and (3) “Mandatory Aggregation of Mass Tort Litigation in Bankruptcy,” in the Yale Law Journal Forum.

Read the full opinion from the bankruptcy court.

Read “Assessing the Legitimacy of the ‘Texas Two-Step’ Mass-Tort Bankruptcy,” from the Bankruptcy Law Letter, cited in the opinion.

End of eviction moratoria did not increase renter anxiety, new report from Mazzone and Wilson finds

Main Library at the University of Illinois in early fall.

When the COVID-19 pandemic disrupted life in unprecedented ways, one of the most consequential was the suspension of eviction hearings and moratorium on evictions imposed by the CARES Act. When evictions proceeded again, many predicted a housing crisis would follow, but this was not borne out in Census Bureau survey data from 2020 through 2023, Likewise, anxiety about eviction among renters never reached levels feared and has fallen as the moratoria recede into history. Professors Jason Mazzone and Robin Fretwell Wilson explore these findings in a new Policy Spotlight.

Read the full PDF on the Institute of Government and Public Affairs website.

Shapiro talks campus free speech with Illinois News Bureau

When it comes to speech, “There is legal freedom and there is practical freedom,” Professor Lena Shapiro explained. The director of the First Amendment Clinic explained how the freedoms related to speech in the United States are applied on college campuses, especially in the wake of the October 7 attacks in Israel and the ensuing war. “Most expressions commonly identified as “’hate speech’ are protected by the First Amendment and cannot lawfully be censored, punished or unduly burdened by the government – including by public colleges and universities,” she said.

Read the full interview with the Illinois News Bureau.

Sherkow speaks at workshop in Tasmania

Professor Jacob Sherkow was invited to speak at the “Regulation of Innovative Health Technologies Workshop,” which took place at the leading Centre for Law and Genetics, University of Tasmania, from November 23-25, 2023. As part of the workshop, Sherkow was the organizer of a session examining patents as regulators of innovative health technologies. The international workshop was attended by leading global health regulation and intellectual property rights scholars to discuss issues at the cutting edge of how we develop, regulate and deliver access to innovative health technologies.

Approval of CRISPR therapy may soon lead to lawsuits according to Sherkow

Researchers work on lab projects with a syringe and vial.

“I would be surprised, bluntly, if [a lawsuit] does not get filed by the end of this year,” Professor Jacob Sherkow told Politico about the patent battle over CRISPR technology. When the FDA issued approval for the therapy in sickle cell cases, it granted approval to companies that do not hold licenses for CRISPR. As Sherkow explained, the Broad Institute holds the U.S. patent on editing human cells with CRISPR and can sue companies that don’t have licenses for their patents for infringement as soon as a new product comes on the market, which is certain to happen following FDA approval.

Brubaker tells Bloomberg decision in Purdue Pharma case may have wide implications

In the pending U.S. Supreme Court case regarding Purdue Pharma’s litigation shield for the Sackler family, the decision of the Court could impact widely used non-debtor releases in Chapter 11 bankruptcy cases. Professor Ralph Brubaker suggested to Bloomberg Law the ruling might affect cases involving mass torts, including cases involving the Catholic diocese, Boy Scouts, Rite Aid, and Highland Capital. The decision’s implications may also extend to asbestos-related bankruptcies and the use of non-consensual third-party releases under Section 524(g) of the bankruptcy code.

Second Circuit cites Brubaker in recent decision

Ruling in the case Nine West LBO Securities Litigation, the United States Court of Appeals for the Second Circuit cited Professor Ralph Brubaker’s work on safe harbor rules in the Tax Equity and Fiscal Responsibility Act of 1982. The case revolved around the leveraged buyout of an apparel and footwear company, including brands such as Nine West and Anne Klein, and the later bankruptcy filing of the company’s successor. The Second Circuit determined, based on Brubaker’s scholarship, that payroll transfers made by the company that filed for bankruptcy were not covered under the safe harbor rules and vacated the lower court’s decision regarding those claims.

Read the full opinion.

The Civilian features Robbennolt and Winship article on settlement

People generally grasp the basic concept of settlement, recognizing it as an agreement between parties to resolve a dispute without the need for a trial, but some confusion exists regarding the settlement process. Professors Jennifer Robbennolt and Verity Winship, along with Jessica Bregant ’09, have made examining settlements one of the hallmarks of their scholarship, and their work was highlighted in The Civilian, an online journal out of Stanford that makes research accessible to lay audiences. The Robbennolt-Winship study surveyed more than 1,000 individuals to learn more about people’s perceptions of fault and responsibility in settled cases, revealing that about half of the respondents believe settlement implies some admission of responsibility, emphasizing the impact of public perception on individuals’ confidence in the legal system.

Read the full article at The Civilian.

MIT Technology Review quotes Sherkow on CRISPR sickle cell treatment

Student researchers work in the The integrated Bioprocessing Research Laboratory (IBRL) facilities.

Approval for Vertex Pharmaceutical’s sickle cell treatment using CRISPR technology has brought use of the gene-editing therapy to a “collision point,” according to Professor Jacob Sherkow. Speaking to the MIT Technology Review, Sherkow explained how the patent on editing human cells using CRISPR is owned by the Broad Institute of MIT and Harvard, not Vertex, which will almost certainly result in a lawsuit. With a potential market in the tens of billions, Sherkow believes a lawsuit is inevitable.