Daniel Tavera (Mississippi College – School of Law) has posted Forum Shopping After Purdue Pharma (Baylor Law Review) on SSRN. Here is the abstract:
In recent years, bankruptcy courts have been willing to entertain expansive definitions of their own power in providing releases to non-debtors linked to chapter 11 cases or bargains. In Purdue Pharma, the Supreme Court signaled that consent is a crucial factor in evaluating whether releases are valid. A key factor in shaping the future analysis of consent is whether consent exists under state contract law. Yet here is the problem: State contract law may not define contractual consent the same way in every state. Evaluating contractual consent under state law may incentivize debtors to file chapter 11 cases in venues based on favorable state-law outcomes. This Article examines how state law may shape contractual consent in chapter 11 cases and argues that, in the absence of governing federal law, state law thus becomes a critical factor in determining the venue for a chapter 11 bankruptcy case.
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Lawrence Solum