Rejected Executory Contracts Made Simple: Mission v. Tempnology

By: Donald L. Swanson “Rejection of a contract—any contract—in bankruptcy operates not as a rescission but as a breach.” Essential declaration of law from U.S. Supreme Court opinion on trademark issues in Mission Product Holdings, Inc. v. Tempnology, LLC, (Case No. 17-1657), issued May 20, 2019. Photocopier Lease Illustration The Supreme Court’s opinion illustrates and clarifies how... Continue Reading →

A Study on Delegating Responsibility for Important Decisions: Application to Mediation?

By: Donald L. Swanson Consumers often delegate the responsibility for making difficult decisions to others. This is the finding of a recent study by two college professors [Fn. 1]. Avoiding Regret v. Avoiding Disappointment The study distinguishes between a consumer’s desire to avoid “regret” and to avoid “disappointment.” While both regret and disappointment “capture a person’s... Continue Reading →

Are Stern & Granfinanciera Going The Way Of Dewsnup: Being Limited To Their Narrow Holdings?

By: Donald L. Swanson “Movants are asking this Court to extend the holdings of [Stern v. Marshall and Granfinanciera] in order to find that 28 U.S.C. § 157(a) is unconstitutional . . . The Court declines to make that leap.” Chief Judge Christopher S. Sontchi, Delaware Bankruptcy Court, in Paragon v. Noble Corporation, A.P. No. 17-51882,... Continue Reading →

“Can’t Get No Satisfaction” From, (i) Late-In-A-Lawsuit Mediation, and (ii) Type of Mediator

https://m.youtube.com/watch?v=nrIPxlFzDi0 By: Donald L Swanson “Satisfaction” of parties to a mediation is difficult to describe, let alone measure. But a recent study published by the Harvard Negotiation Law Review [Fn. 1] examines the “satisfaction” of mediating parties.  It identifies two items that have a significant effect on a party's “satisfaction”: (i) timing of referral, and (ii)... Continue Reading →

Can Obeying a Court Order Prevent Contempt Sanctions? (Taggart v. Lorenzen)

Note:  This article was published, originally, by the American Bar Association, in its "Preview of United States Supreme Court Cases," Issue No. 7, Vol 46, page 50, on April 15, 2019.  By: Donald L. Swanson CASE AT A GLANCE Let’s say you sue a defendant in state court for injunctive relief. The defendant then files bankruptcy and receives... Continue Reading →

Assertive Mediator Techniques Produce More Agreements and Greater Satisfaction–A Mediation Study

By: Donald L. Swanson “we were surprised to find that mediators could use assertive strategies to obtain settlements without overly sacrificing disputant satisfaction with the mediation.” Friendly Persuasion in Civil Case Mediations, by James A. Wall & Suzanne Chan-Serafin, 31(3) Conflict Resolution Quarterly at 285-303 (2014). The “Friendly Persuasion” article is about a study that tests the... Continue Reading →

Getting Away With Corporate Raiding: A New In re Tribune Opinion and § 546(e) Safe Harbor

By: Donald L. Swanson The Tribune Company (yes, the formerly-venerable Chicago Tribune newspaper) filed bankruptcy in 2008, after being crippled by a corporate raid in 2007 Here’s What Happened Tribune’s dominant shareholders (they owned 33%) wanted to cash out their shares of stock. So they engineered a scheme, whereby Tribune borrowed money to buy its own... Continue Reading →

The Problem of Mediating While a Court Ruling is Imminent

By: Donald L. Swanson “[W]e are unaware of any authority suggesting that a district court may not rule on a pending motion for summary judgment while the parties may be attempting to settle the matter outside of court.” --Third Circuit Court of Appeals in Myrick v. Discover Bank, Case No. 16-1966, fn. 6 (10/7/2016). The... Continue Reading →

Congress Needs to Help Family Businesses in Financial Stress — Not Punish Them!

By: Donald L. Swanson We live and work in a market economy, here in these United States. The market is our economic judge: it validates—or invalidates—business decisions, and it picks winners and losers. The market is an efficient, impartial and unbiased judge. But it is also cruel and unforgiving. The result is that many businesses succeed.... Continue Reading →

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