Disagreement regarding the interpretation of section 365(c) of the Bankruptcy Code has led to divergent rulings among the bankruptcy and federal circuit courts regarding whether a bankruptcy trustee or chapter 11 debtor can assume an executory contract or unexpired lease that is unassignable under applicable non-bankruptcy law without the counterparty’s consent—even where the debtor has no intention of assigning the agreement to a third party. Some courts, including several federal circuit courts, have ruled […]

In late June the Supreme Court handed down Harrington v. Purdue Pharma L.P. a 5-4 decision in which the court made clear the decades-long practice of shielding non-debtors from future claims in exchange for their financial contribution to creditors’ recovery in a Chapter 11 bankruptcy plan was no more. The Sackler family—who long owned and controlled the now infamous maker of OxyContin—had negotiated a $6 billion contribution to Purdue’s bankruptcy as a “settlement” of all claims […]