COMMENTARY: What counts as consent? Third-party releases in the wake of Purdue

A new commentary examines how “consent” for nonconsensual third-party releases is being interpreted by courts after the U.S. Supreme Court’s 2024 decision in Harrington v. Purdue Pharma L.P. The article notes that the Supreme Court held the Bankruptcy Code does not allow nonconsensual third-party releases under a Chapter 11 plan, but it did not define what counts as consent. Since then, courts have split over whether creditors must affirmatively opt in (for example, by checking a box), be allowed to opt out if they don’t want to be bound, or meet other requirements such as clear and conspicuous notice. It highlights an example: in a 2025 Spirit Airlines case, a bankruptcy judge approved an opt-out mechanism in the Southern District of New York, emphasizing prominent disclosures, clear opt-out procedures, casewide discussion, and economic incentives, among other factors.