When the Supreme Court issued its highly anticipated opinion in the Purdue Pharma case this June, decades of bankruptcy practice was called into question. The Court’s opinion removed a potent shield from the Sackler family, owners of Purdue Pharma, who many believe caused the opioid crisis, and it also clarified the fundamental limits of bankruptcy law. Today, we take another look at this groundbreaking case and all its implications as we are joined again by Brook Gotberg and Richard Squire. After a quick recap of the history of the Sacklers and OxyContin, we take a closer look at third-party releases, why they came to be, and how the Sackers are considered third parties even while deeply entrenched in the company. Then we explore voting statistics and the role of consent in bankruptcy settlements, the aftereffects of the Bankruptcy Court confirming Purdue’s plan, the Supreme Court’s decision on the merits including how Section 1123(b)(6) and other bankruptcy laws were interpreted, and the arguments set forth in Justice Brett Kavanaugh’s dissent. We end with backdoor tort reform and try to understand the Supreme Court’s underlying agenda, and our guests detail possible legislative solutions as they share their visions of the future of bankruptcy law post Purdue Pharma.

Key Points From This Episode:

• A brief history of the Sackler family, OxyContin and the opioid crisis in America, and Purdue Pharma’s bankruptcy filing.
• Understanding a third-party release; what it is and how it came about.
• How the Sacklers, founders and owners of Purdue Pharma, can still be considered third parties.
• Voting statistics and the role of consent in the Purdue Pharma case.
• Why some bankruptcy plans are given the green light even after multiple creditor objections.
• The state of affairs after the Bankruptcy Court confirmed Purdue Pharma’s plan.
• Defining the central holding of the Supreme Court case handed down in June 2024.
• Unpacking Justice Kavanaugh’s dissent and the merits thereof.
• Exploring how Section 1123(b)(6) and other bankruptcy laws were interpreted in this case.
• The future of bankruptcy law after Purdue Pharma.
• Backdoor tort reform implications and the Supreme Court’s underlying agenda.
• Whether bankruptcy is trying to colonize other areas of law.
• Possible legislative adjustments and solutions.

Links Mentioned in Today’s Episode:

Brook Gotberg at BYU Law

Brook Gotberg on LinkedIn

Brook Gotberg on X

Richard Squire at Fordham Law

Richard Squire on LinkedIn

‘Harrington v. Purdue Pharma L.P.’

Purdue Pharma

Associate Justice Brett M. Kavanaugh

‘Chapter 11 - Bankruptcy Basics’

Fordham University School of Law Corporate Law Center

Is the current corporate tax system fair, or does it enable companies to exploit legal loopholes while sidelining essential societal goals? Today, we continue our in-depth discussion on tax within the Environmental, Social, and Governance (ESG) space, delving into the intricacies of corporate tax with Seth Piken. Seth is tax counsel at Ropes & Gray, specializing in corporate and international tax law. In our conversation, we discuss the fairness of the current tax regime, examine whether it’s the best mechanism to drive ESG initiatives, and debate if ESG ratings should influence corporate tax rates. Explore the potential challenges posed by additional ESG-related taxes, the tension between ESG principles and the traditional goal of wealth maximization, and the effectiveness of the proposed ESG-tax framework in achieving its intended impact. Join us as we tackle the broader societal implications of higher corporate taxes, the complexities of fairly administering tax rates within an ESG framework, the global taxation system, and much more. Tune in now!

Key Points From This Episode:

• Introducing our special guest and corporate tax law specialist, Seth Piken.
• A brief recap of the previous episode and its main takeaways surrounding tax.
• Seth shares his thoughts on companies exploiting legal tax loopholes.
• Background about the corporate tax regime and why companies should pay tax.
• Alternative ways of using the existing tax system to enhance the ESG space.
• Justifications for why corporations should not have to pay more tax.
• Seth explains why corporations sometimes pay lower taxes than expected.
• Uncover common misconceptions surrounding corporate tax rates.
• Find out why increasing tax will result in lower contributions to the ESG movement.
• The complexities of including corporate tax within the ESG rating system.
• Learn why Warren Buffet’s recent remarks regarding taxes were misleading.
• What Seth liked about the Missing T article, and the idea of including ESG within corporate tax.

Links Mentioned in Today’s Episode:

Seth A. Piken

Ropes & Gray

Episode 50 - The Missing T: Part I

‘The Missing "T" in ESG’

Danielle Chaim at Bar-Ilan University

Gideon Parchomovsky at University of Pennsylvania Carey Law School

Episode 30 - Adam Winkler on Corporations as People

We the Corporations

Berkshire Hathaway

Fordham University School of Law Corporate Law Center

The Environmental, Social, and Governance (ESG) movement is often hailed as one of the most transformative initiatives in modern corporate history. But are we overlooking a critical element that could redefine what it means to be a truly responsible corporation? In this episode, we explore an often-overlooked aspect of ESG—what the authors of a groundbreaking paper call the “missing T.” We are joined by Danielle Chaim, Assistant Professor at Bar-Ilan University, whose research focuses on the intersection of corporate governance and financial markets, and Gideon Parchomovsky, Professor of Law at the University of Pennsylvania Carey Law School, a leading expert in intellectual property and privacy law. Together, they unravel how corporate tax plays a pivotal role in shaping sustainable and equitable business practices. They discuss the growing trend of investors gravitating towards companies aligned with ESG principles and the ESG successes that corporations have achieved. Explore the blind spots within the ESG movement and how aggressive tax behaviors can significantly undermine the progress made by ESG initiatives. Gain insights into how corporations take advantage of legal tax avoidance strategies, why ESG rating agencies are partly to blame, the role of institutional investors, transparency, and more. Join us to discover the hidden complexities of ESG and how the “missing T” could be the key to truly sustainable business practices. Tune in now!

Key Points From This Episode:

• What the ESG movement is and its rise in popularity among investors.
• How the dysfunctional nature of politics has driven ESG in business.
• Discover the biggest problem and flaw facing the ESG movement.
• Aggressive tax behavior and why corporations are not held accountable for it.
• Hear examples of the various tax loopholes that corporations leverage.
• Unpack the tax behavior trends of large and powerful corporations in recent years.
• Why the government still has a significant role to play in the ESG movement.
• Explore why partnerships between governments and corporations are vital.
• Uncover the mystery behind ESG rating agencies and their rating methodology.
• The relationships between high ESG ratings and aggressive tax behavior.
• Final takeaways and what can be done to fill the tax gap in the ESG framework.

Links Mentioned in Today’s Episode:

Danielle Chaim on LinkedIn

Danielle Chaim at Bar-Ilan University

Gideon Parchomovsky at University of Pennsylvania Carey Law School

‘The Missing "T" in ESG’

‘ESG to hit $40tn by 2030 says Bloomberg’

The Institute on Taxation and Economic Policy (ITEP)

Fordham University School of Law Corporate Law Center