It seems to come down to whether the sentence "[A chapter 11 bankruptcy plan may] include any other appropriate provision not inconsistent with the applicable provisions of this title" means "A plan can contain anything anyone can imagine as reasonable as long as it isn't expressly forbidden" or "A plan can contain other types of provisions that follow the same general theme as the concrete list given just before this sentence".
The Sacklers argued that the law says they can take away other peoples rights to sue them, since the law says these bankruptcy plans can include "anything", and the majority opinion of SCOTUS was that that's not the right way to read the law.
It also seems to turn whether the Sacklers seek a third-party “release,” which is precedented, or “discharge,” which is not. (The Court also assumes Purdue’s indemnification of the Sacklers will not hold, which would allow the Sacklers to drain Purdue as they fight the various claims against them.)
Interestingly, the argument for is textual. The argument against is pragmatic. (Both argue history, in my opinion, unconvincingly. They’re talking past each other on release vs discharge, a delineation neither side bothers to delve into.) The dividing line defies easy summary. (Gorsuch, Thomas, Alito, Barrett and Jackson concurring, Kavanaugh, Roberts, Sotomayor and Kagan dissenting.)
The argument for is a mixture of textualism and moral repugnance at the idea of letting the Sacklers keeping billions in profits they made from killing a quarter of a million people. I suspect the second part was strengthened to swing Jackson's vote and aside from her, it's a fairly standard split.
> the law says we can take away other people's rights to sue us as part of a bankruptcy settlement
As the dissent notes, third-party releases are part of the law. The turn is on whether the Sacklers are having third-party liabilities discharged versus released.
The solution may be in re-drafting the Plan so it’s more clearly a release. That might mean the Sacklers can be sued for fraud, but not other things.
> If this decision was just about third-party releases, it wouldn't be before the court. And you know that.
What is the difference between a discharge and release as it relates to the §1123(b)(6) “any other appropriate provision” power this case is about? You seem to have clarity the Court’s members couldn’t find.
You, then: As the dissent notes, third-party releases are part of the law.
Gets called out for over-simplifying the case.
You, now: What is the difference between a discharge and release as it relates to the §1123(b)(6) “any other appropriate provision” power this case is about?
Indeed. Maybe next time, stop pretending there isn't more to it.
It seems to come down to whether the sentence "[A chapter 11 bankruptcy plan may] include any other appropriate provision not inconsistent with the applicable provisions of this title" means "A plan can contain anything anyone can imagine as reasonable as long as it isn't expressly forbidden" or "A plan can contain other types of provisions that follow the same general theme as the concrete list given just before this sentence".
The Sacklers argued that the law says they can take away other peoples rights to sue them, since the law says these bankruptcy plans can include "anything", and the majority opinion of SCOTUS was that that's not the right way to read the law.