Mediating Bankruptcy Reorganization Disputes v. Mediating Commercial Lawsuit Disputes (In re Caesars)

Caesars (photo by Marilyn Swanson) By: Donald L Swanson Mediating bankruptcy reorganization disputes is dramatically different from mediating commercial lawsuit disputes.  I’ll try to explain. Mediating Commercial Lawsuit Disputes Commercial litigation tends to go through these broad phases: pleadings; discovery; dispositive motions; mediation; trial; and appeal. Mediation in commercial lawsuits tends to be a one-and-done affair:... Continue Reading →

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Nondischargeability For “Willful And Malicious Injury” Cannot Be Based On Vicarious Liability (M.O. v. Rosario)

Honest and unfortunate (photo by Marilyn Swanson) By: Donald L Swanson Nondischargeability for “willful and malicious injury by the debtor to another entity or to the property of another entity,” under § 523(a)(6), cannot be based on a principal-agent theory of vicarious liability. That’s the holding of M.O. v. Rosario (In re Rosario), Case No. CC-24-1163... Continue Reading →

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An Old Mediation Controversy—Based on Misunderstandings & Overreactions? (In re Caesars Entertainment)

Caesars (photo by Marilyn Swanson) By: Donald L Swanson In re Caesars Entertainment is one of the major-and-successful bankruptcy cases in the history of these United States.  The Caesars bankruptcy was filed on January 15, 2015, in the Northern Illinois Bankruptcy Court with $18 billion of debt.  It achieved a confirmed plan two years later (on... Continue Reading →

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“Indicative Rulings”: Settling Bankruptcy Disputes At Circuit Court Of Appeals (Cox v. Nostaw) (Part 4)

Indicating? (Photo by Marilyn Swanson) By: Donald L Swanson How does the “indicative rulings” process work when a settlement occurs while a bankruptcy dispute is pending on appeal before a U.S. circuit court of appeals?  In such circumstance:  the parties’ dispute has previously been resolved by a bankruptcy court order; then, the bankruptcy court order has... Continue Reading →

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The Evolved “Engaged In Commercial Or Business Activities” Standard For Subchapter V Eligibility (In re Stevens)

Engaged in commercial or business activities (photo by Marilyn Swanson) By: Donald L Swanson The Bankruptcy Court in In re Stevens, 667 B.R. 428 (Bankry. S.D.W. Va. 2025), addresses the question of Debtors’ eligibility for Subchapter V relief under the “engaged in commercial or business activities” standard.  In doing so, the In re Stevens court compiles... Continue Reading →

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“Indicative Rulings”: Settling Bankruptcy Disputes While On Appeal — Rule 8008 (In re Millenkamp) (Part 3)

Indicating? (Photo by Marilyn Swanson) By: Donald L Swanson Here is an opinion illustrating how the “indicative rulings” process in Fed.R.Bankr.P. 8008 can work: Millenkamp Cattle, Inc. v. East Valley Development, LLC (In re Millenkamp Cattle, Inc.), Adv. No. 25-8003, Idaho Bankruptcy Court (decided August 19, 2025). Facts Before filing bankruptcy, Debtor enters into two contracts... Continue Reading →

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Arbitrating An Automatic Stay Dispute—And U.S. Constitution’s Bankruptcy Uniformity (Goldman Sachs v. Brown)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson A long-standing tension exists between provisions of the Bankruptcy Code and provisions of the Federal Arbitration Act (9 U.S.C. § 1 et seq., “FAA”). The question in such tension is this: must disputes over essential bankruptcy functions be addressed in arbitration, instead of bankruptcy court, under pre-petition... Continue Reading →

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“Indicative Rulings”: For Settling Non-Bankruptcy Disputes On Appeal (Vroom v. Sidekick) (Part 2)

Indicating? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s an opinion illustrating how the indicative ruling process works under Rule 62.1 (when there is no bankruptcy case involved): Vroom, Inc. v. Sidekick Tech., LLC, Case No. 21-cv-6737 (U.S. District Court for New Jersey; decided January 6, 2026). What follows is an attempt at summarizing the... Continue Reading →

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Must An Avoidance Lawsuit Against A Subsequent Transferee Under § 550(a) Name The Initial Transferee As Defendant? (Phillips v. SS Associates)

The initial transfer? (photo by Marilyn Swanson) By: Donald L Swanson “[T]o the extent that a transfer is avoided . . . , the trustee may recover . . . the property transferred, or . . . the value of such property, from—(1) the initial transferee of such transfer . . . , or (2) any... Continue Reading →

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“Indicative Rulings”: For Settling Disputes During Appeal (Part 1)

Indicating? (Photo by Marilyn Swanson) By: Donald L Swanson Many years ago, when I first heard a bankruptcy attorney refer to an “indicative ruling,” I thought it was a joke.  And I say something like: “Ha, ha!  There is no such thing.”  Then, to my embarrassment, the attorney points to a rule of bankruptcy procedure, a... Continue Reading →

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