Court affirms dismissal of post-confirmation challenge to Chapter 11 plan

Wernick Law obtained an affirmance in the U.S. Court of Appeals for the Eleventh Circuit for ECI Pharmaceuticals LLC. The court affirmed the dismissal of a challenge to our client ECI’s confirmed Chapter 11 plan. The lesson for practitioners is simple: if you want to fight a third-party release, object before confirmation.
Acute, Inc. had notice of ECI’s plan and did not object. After confirmation, it appealed, arguing that the plan’s third-party releases were impermissible under Harrington v. Purdue Pharma.

The Eleventh Circuit held that Acute forfeited the issue. The court walked through each of the five recognized exceptions that allow an appellate court to reach an argument not raised below, found that none applied, and affirmed. It also held that Acute had abandoned its challenges to the bankruptcy court’s sale order.
The court did not decide whether ECI’s releases would survive Purdue. It held only that Acute could not revive an objection it never preserved. That distinction matters. The opinion is a useful roadmap on when an appellate court will — and will not — excuse a forfeited plan objection.

Aaron Wernick, Esq., Hayley Harrison, Esq., Corinne Aftimos, Esq., and Courtney Milam, Esq. handled the appeal for ECI.

Opinion: In re ECI Pharmaceuticals LLC, No. 25-12829 (11th Cir. July 7, 2026) (unpublished) https://media.ca11.uscourts.gov/opinions/unpub/files/202512829.pdf
The American Bankruptcy Institute highlighted the decision and its discussion of the five exceptions: https://www.abi.org/newsroom/daily-wire/eleventh-circuit-lays-out-five-exceptions-when-waiver-doesn%E2%80%99t-bar-an-appeal