Fraudulent Transfer Claims — In Constitutional Limbo

By: Donald L. Swanson “we assume without deciding, that the fraudulent conveyance claims in this case are Stern claims.” [Fn. 1] From unanimous U.S. Supreme Court decision in Executive Benefits Insurance Agency v Arkison (Decided June 6, 2014). [Fn. 2] It’s a curious thing, this failure-to-decide the constitutional status of fraudulent transfer claims in bankruptcy. Here’s... Continue Reading →

How Mandated Mediation Works — Even When It Doesn’t

By: Donald L. Swanson The U.S. District Court for the Middle District of Florida has a mediation policy that’s mandatory. A dispute can be excused from mediation, however, “upon a determination” that it “is not suitable for mediation.” A recent case shows how the Middle District’s policy of mandated mediation offers more than one road to... Continue Reading →

The Problem of Pass-Through Tax Liability from Liquidation of a Family Business — A Chapter 11 Solution?

By: Donald L. Swanson Hypothetical: A family business has been successful for many years. But obsolescence of its products and services is taking a toll: the business is now insolvent, its assets are fully encumbered, no one is interested in buying the business as a going concern, and family shareholders have guaranteed most of its debts.... Continue Reading →

A Formula Governing the Settlement of Business Disputes

By: Donald L. Swanson Settlement = Assessment of Risk + Math This formula describes the structural supports for settling a business dispute. And I’m still convinced of the formula's accuracy, based on long experience. The constancy of this formula’s application means that business people are, ultimately, rational beings—even when emotions run high. I mentioned the formula... Continue Reading →

The Constitution’s “Bankruptcies” Clause: Assumed but Not Discussed or Cited in U.S. Supreme Court Bankruptcy Opinions

By: Donald L Swanson “It’s assumed.” That's the answer I heard, recently, to this question: “Why does the U.S. Supreme Court fail to discuss, or even cite, the ‘Bankruptcies’ clause of the U.S. Constitution when it decides constitutional questions of bankruptcy law?” [Fn. 1] Say what?!  Let’s get this straight: The U.S. Constitution has a clause empowering... Continue Reading →

Mediation Agreements as “Res Judicata”: Solid as Rock

By: Donald L. Swanson "mediated agreements are accorded the same res judicata effect and enforceability as a . . . judicial decree.” --Hoglund v. Aaskov Plumbing & Heating, No. WCB-05-280, slip op. (Maine S.Ct. Apr. 26, 2006) The foregoing quotation is the strongest articulation by a court I've seen on the strength and effectiveness and... Continue Reading →

Contract Rejection Damages as Administrative Claims in Bankruptcy

By: Donald L. Swanson “What is at issue for these parties, practically speaking, is whether to classify as prepetition or post-petition liability any damages caused by Debtor’s failure to honor its executory obligations.” --U.S. First Circuit Court of Appeals in Mission Product Holdings v. Tempnology, LLC., Case No. 16-9016 (1/12/2018), at 14. Current Posture Mission v.... Continue Reading →

Mediation Lesson from Northern Ireland Peace Process: Finding Core Principles is the First and Primary Task

By Donald L. Swanson Several years after the end of World War I, Winston Churchill penned these words about Northern Ireland: “The whole map of Europe has changed, but as the deluge subsides and the waters fall short, we see the dreary steeples of Fermanagh and Tyrone emerging once again. The integrity of their quarrel is... Continue Reading →

Dewsnup Needs to be Overturned: It’s Out of Touch and Based on a Bizarre Foundation (But U.S. Supreme Court Passes)

By: Donald L. Swanson The U.S. Supreme Court’s Dewsnup v. Timm opinion (502 U.S. 410 (1992)) was wrongly decided and needs to be overturned. Unfortunately, that's not going to happen any time soon, since the U.S. Supreme Court denied certiorari on Tuesday (February 19, 2019) in the case of Ritter v. Brady, Supreme Court Case No. 18-747.... Continue Reading →

Blog at WordPress.com.

Up ↑

%d bloggers like this: