Effects of Executory Contract Rejection — At U.S. Supreme Court

By: Donald L. Swanson Here’s a case about the effects of executory contract rejection. While its focus is on “intellectual property” rights under § 365(n) [Fn. 1], the case also delves into the effects of rejection for all types of executory contracts under § 365(g) [Fn. 2]. And this case demonstrates the hazards of a failure... Continue Reading →

Settlor’s Regret in Mediation — After It’s Too Late to Back Out

By: Donald L. Swanson “There was a settlement . . . many arguments have been constructed to get around that unfortunate fact, but it’s a fact.” --Bankruptcy Judge, during hearing on Motion to enforce a mediated settlement in Lehman Brothers bankruptcy. It’s common in business bankruptcies for the estate to pursue preference and fraudulent transfers claims.  Sometimes,... Continue Reading →

Successor Liability After Bankruptcy Sales: Actual Knowledge v. Constructive Notice, at U.S. Supreme Court

By: Donald L. Swanson Imagine buying assets out of bankruptcy at a fair price, only to have a previously-unknown liability tag along. --Surprise, surprise! The U.S. Supreme Court has an opportunity to weigh-in on such a “Surprise, surprise” issue.  A petition for writ of certiorari is pending in a case where this could happen—complete with a $63... Continue Reading →

“I’m Not Comfortable With Requiring Mediation” = Unfounded Squeamishness

By: Donald L Swanson “Any district court that elects to require the use of . . . alternative dispute resolution in certain cases may do so . . . with respect to mediation.” Alternative Dispute Resolution Act of 1998 (28 U.S.C. § 652(a)). “I don’t feel comfortable requiring parties to mediate.” Ubiquitous sentiment among judges. I... Continue Reading →

Ignoring Constitution’s “Bankruptcy Clause” at U.S. Supreme Court — A Historical Peculiarity

By: Donald L Swanson “Congress shall have Power”: “To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States”; and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” U.S. Constitution, Art. I, Sec. 8, cls. 4 & 18 (emphasis added). Any opinion... Continue Reading →

Varying Ways to Succeed as a Mediator

By:  Donald L. Swanson We “sought to determine whether the reasons for mediator success are the same for all successful mediators, or whether different mediators succeed for different reasons.” Prof. Stephen B. Goldberg and Margaret L. Shaw in a 2008 report titled, “The Secrets of Successful (and Unsuccessful) Mediators.” The study: In their study, Prof.... Continue Reading →

Justice Kennedy: Last of Supreme Court’s “Old Bankruptcy Guard”

By: Donald L. Swanson Tuesday, July 31, 2018, is the last day of Anthony Kennedy’s three-decades-long service as a Justice of the U.S. Supreme Court (since February 18, 1988). On bankruptcy issues, Justice Kennedy did not author many opinions of any sort (majority, concurring or dissent). Nevertheless, he has always been a part of what I... Continue Reading →

Screwing Up Our Bankruptcy World — Again? (Arbitration Petition at U.S. Supreme Court)

By: Donald L. Swanson The U.S. Supreme Court has a history of screwing-up our bankruptcy world. Examples go back to the 1982 debacle called Northern Pipeline v. Marathon Pipe Line, where the Supreme Court came within one vote (one vote!) of declaring the entire Bankruptcy Code unconstitutional. A more recent example, Stern v. Marshall in 2011,... Continue Reading →

Who Says Bankruptcy Judges Don’t Have Article III Independence?!

By: Donald L Swanson Actually, the U.S. Supreme Court does . . . but they’re wrong. Here’s why. Some History Back in early 1980s, when the Bankruptcy Code was but a few years old, the U.S. Supreme Court struggled with bankruptcy court jurisdiction. --Northern Pipeline That struggle resulted in the Supreme Court's 1982 Northern Pipeline v.... Continue Reading →

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