A Bankruptcy Exception to the Federal Arbitration Act — In the U.S. Constitution

By: Donald L Swanson “The Congress shall have Power . . . To Establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” --Bankruptcies Clause in the U.S. Constitution, Art. I, Sec. 8, Cl. 4. Bankruptcy Exception to Arbitration -- A Constitutional Argument Try this argument on for size: The Constitution's... Continue Reading →

Highlights from Oral Arguments at U.S. Supreme Court on Constitutionality of Puerto Rico’s Oversight Board

By: Donald L Swanson The case before the U.S. Supreme Court is Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (Case No. 18-1334). Oral arguments occurred on October 15, 2019. Here is a link to the official transcript. An Oddly Important Case This is an oddly important case: it’s resolution turns on... Continue Reading →

When Impasse on a Legal Issue Impedes Mediation: An Example of Effective Action

By: Donald L Swanson There is often a tension in mediation that goes something like this: Party of the first part says: We win on a technical legal issue—100% certainty! Party of the second part responds: You do not win on that issue—100% certainty! Party of the first part reacts: Do so! Party of the second... Continue Reading →

Forum Selection v. Forum Shopping: The Proposed “Bankruptcy Venue Reform Act of 2019”

By: Donald L Swanson A bankruptcy bill on venue reform is sitting in Congress right now. The bill is H.R. 4421 – 116th Congress (2019-2020) and is titled, “Bankruptcy Venue Reform Act of 2019.” It aims to eradicate “forum shopping” abuses by eliminating forum selection options altogether. Opposed Hopefully, this bill goes nowhere and dies out.... Continue Reading →

The Problem of Caucus in Mediating Business Disputes

By: Donald L Swanson “The Mediator is a nice guy, but he needed to pound harder on the other side.” —A disappointed litigator on why a mediation did not achieve settlement. This quote is a common post-mediation refrain. A Fundamental Error The quote contains a fundamental error. The error is this assumption: it is the mediator’s... Continue Reading →

Debtor’s Digital Signature in Bankruptcy: The Nebraska Rule

By: Donald L Swanson The Nebraska Bankruptcy Court is the first in the nation to allow debtors to digitally sign petitions, schedules and other bankruptcy documents, rather than requiring a wet ink signature on paper documents. The Nebraska Rule On February 5, 2018, the Hon. Thomas L. Saladino, Chief Judge of the Nebraska Bankruptcy Court, amended... Continue Reading →

Bankruptcy Mediation Training Course — December 2019

  By:  Donald L. Swanson The American Bankruptcy Institute and St. John’s University School of Law do an annual forty-hour [yes, that’s 40-hour] “Bankruptcy Mediation Training” course in New York City.  The next course is coming soon -- it’s scheduled for December 8 – 12, 2019.  Here is a schedule and sign-up link. I took... Continue Reading →

Small Business Reorganization Act: A Great Law With A Major Flaw

By: Donald L Swanson The Small Business Reorganization Act of 2019 has the following discharge provisions: Plan confirmation “discharges the debtor from” specified debts (see § 1181(c), § 1192 & § 1141(d)(1)(A)); but The discharge takes effect only “after completion” of “all payments due within” the 3 to 5 years term of the plan (§ 1192).... Continue Reading →

Arbitration of Bankruptcy Disputes: The Need for a “Uniformity” Rationale Under U.S. Constitution

By:  Donald L. Swanson The case is Thomas v Midland Funding LLC, A.P. No. 17-05010 in the Bankruptcy Court for the Western District of Virginia. On appeal, it’s Civil Action No. 5:18-cv-00128 in the U.S. District Court. Odd Facts The facts of the case are a kind of, “Who knew this happens?” Debtor is in... Continue Reading →

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