Davis Polk partner and Restructuring practice co-head Marshall Huebner discussed opt-out releases and courts’ differing views on whether they are consensual with Law.com.

“There are lines to be drawn,” Marshall explained. “Trying to figure out the contours of opt-out releases is the current, next battleground, with non-consensual third-party releases having been disallowed in Harrington/Purdue.”

“Not every judge views it the same way,” Marshall added. “Most judges think opt-out releases are absolutely appropriate and believe that without them you are taking away often critically needed distributions from people for no benefit. Others who are presumably more focused on process say, ‘you simply can’t deem someone to have consented to giving up their claims because they did not return a form.”

“The ‘Next Battleground’ in Chapter 11: Third Circuit Set to Weigh Opt-Out Releases,” Law.com (November 5, 2024) (subscription required) 

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