Flooding — an unforeseen event (photo by Marilyn Swanson) By Donald L. Swanson A business contract will often have a “force majeure” provision, which excuses a party from performing under the contract when performance is prevented by unforeseen circumstances. Force majeure provisions, while commonly included in business contracts, rarely take effect and are rarely even relevant—until... Continue Reading →
Impossibility? (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is Belk, On behalf of herself and All others similarly situated v. Le Chaperon Rouge Co., et al., Case No. 1:18cv1954 in U.S. District Court, N.D. Ohio (decided July 6, 2020). The opinion addresses Plaintiffs’ Motion to enforce a mediated settlement agreement. Defendants oppose the Motion on grounds... Continue Reading →
The tendency of legislation and of judicial interpretation has been uniformly in the direction of expanding the use of the bankruptcy power to meet the needs of an expanding economy.
Theory (i.e., mediator neutrality and party self-determination) gives way to the practical need for achieving a settlement.
Well-defined limits (photo by Marilyn Swanson) By Donald L. Swanson The opinion is In re Parking Management, Inc., Case No. 20-15026, in the Maryland Bankruptcy Court (decided August 28, 2020, Doc. 224). The Question The question is whether Debtor has too much debt to qualify for Subchapter V relief. Background —Subchapter V The new Subchapter V... Continue Reading →
A confidential location (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Adkisson et al. v. Jacobs Engineering Group, Inc., Case Nos. 13-CV-505 et al., in the U.S. District Court for Eastern Tennessee (decided July 7, 2020, Doc. 561). The opinion addresses Defendant’s Motion for an order: Enforcing the confidentiality of mediation; andImposing sanctions... Continue Reading →
Custodians By: Donald L Swanson The case is, In re U.S.A. Parts Supply, Cadillac U.S.A. Oldsmobile U.S.A., L.P., Case No. 20-bk-241, U.S. Bankruptcy Court, Northern West Virginia (decided Aug. 17, 2020, Doc. 143). On March 22, 2020, Debtor files a voluntary Chapter 11 petition under Subchapter V as a small business debtor. Creditors promptly file a... Continue Reading →
Access is unavailable (photo by Marilyn Swanson) By Donald L. Swanson Like many attorneys, I’ve recently participated electronically in many court hearings, mediations and trials. That participation is via Zoom and similar platforms (I’ll refer to all, collectively, as “Zoom”). The Zoom technology is wonderful! It is revolutionizing litigation processes. And the resulting changes are here... Continue Reading →
Comparing and contrasting (photo by Marilyn Swanson) By Donald L. Swanson Pre-bankruptcy planning is an important part of representing an individual debtor in a bankruptcy case. In fact, such planning may be the most-crucial part of the entire bankruptcy process. In pre-bankruptcy planning, the goal is to establish a strategy for the upcoming bankruptcy and an... Continue Reading →
Unlimited access (photo by Marilyn Swanson) By: Donald L Swanson Mediation confidentiality is sacrosanct. Or, so we are all taught in mediation training courses. But in a New Jersey case, from earlier this year, mediation confidentiality is not sacrosanct at all: communications before, during and after mediation sessions are testified to profusely by parties, attorneys and... Continue Reading →