Historical Prejudices Against Formerly-Successful Entrepreneurs Remain (In re Offer Space)

A link to the past (photo by Marilyn Swanson) By: Donald L Swanson Formerly-successful entrepreneurs have always been treated harshly in these United States. That may be hard to believe, given our market and credit economy and the importance of small businesses to it.  But it’s true. And prejudices against formerly-successful entrepreneurs remain in today’s bankruptcy statutes.... Continue Reading →

Enforcing Agreements To Mediate And To Arbitrate (Garcia v. ISS Facility)

Rules for overlapping activity (photo by Marilyn Swanson) By: Donald L Swanson Agreements to mediate and agreements to arbitrate are both enforceable and effective.  But how they are used together, when they overlap, can get tricky.  That’s illustrated by the case of Garcia v. ISS Facility Services, Inc., et al.  The case begins with a U.S.... Continue Reading →

Subchapter V: A New Sale-of-Business Opportunity

New business opportunity (cleanup) arises from a failure (photo by Marilyn Swanson) By Donald L. Swanson For many years, Chapter 11 has been nearly-synonymous with sale of a business.  The Old Way But such Chapter 11 sales typically occur under § 363 as pre-confirmation asset sales.  Rarely is there a post-confirmation sale of the ownership interests... Continue Reading →

How Mediation Helps Resolve the Unsolvable (In re Zimmer)

Unsolvable? (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Zimmer, Case No. 17-20543 in the Bankruptcy Court for the Western District of Pennsylvania (issued December 14, 2020, Doc. 452). The case is a mess—you’ve got to read it to believe it. Beginning Facts Daniel and Lucille Morris (the “Morris couple”) are... Continue Reading →

Subchapter V: Early Termination Of A Trustee’s Services Under A Consensual Plan (§ 1183(c))

An early end By Donald L. Swanson A Subchapter V trustee has various duties established by statute (see 11 U.S.C. § 1183(b)).  Such duties are substantial and important, but most are concluded upon confirmation of a Subchapter V plan.    Administrative Expense—Early Termination Savings Of necessity, a Subchapter V trustee’s performance of statutory duties creates an... Continue Reading →

Promoting Honesty In Mediation By Face-To-Face Interactions (A Study)

Face-to-face interactions (photo by Marilyn Swanson) By: Donald L Swanson People are “more honest when communicating face-to-face than through an intermediary,” and that is true in “even the briefest of face-to-face interactions.” Study Such are the findings of a study titled, “I Can’t Lie to Your Face.” [Fn. 1] Face-to-face interactions in the study involve visual... Continue Reading →

Standards For Fixing The Length OF A Subchapter V Plan, Under § 1191(c)(2)?

Fixed (photo by Marilyn Swanson) By: Donald L Swanson A debtor’s Subchapter V plan must provide for disposable income payments over a “3-year period, or such longer period not to exceed 5 years as the court may fix” (11 U.S.C. § 1191(c)(2), emphasis added). One of the mysteries of Subchapter V is this: what standards should... Continue Reading →

Persuasive Effect of Stories — When Facts Are Weak Vs. Strong

Weak and strong (photo by Marilyn Swanson) By: Donald L Swanson Persuasion plays a pivotal role in all legal contexts: e.g., pleadings, motions, hearings, mediations, trials and appeals. A recent study on “Strategic Storytelling” [Fn. 1] looks at how the use of a story to present facts  works as a tool of persuasion. Prior research has... Continue Reading →

Do § 523(a) Discharge Exceptions Apply To Corporations In Subchapter V? (Better Than Logs & Satellite Restaurants)

An individual -- not an entity (photo by Marilyn Swanson) By: Donald L Swanson Do § 523(a) discharge exceptions apply to non-individual debtors in Subchapter V? That question has been resolved, with opposite results, in two recent opinions by two bankruptcy courts. What follows is a summary of operative statutes and the two opinions. Operative Statutes... Continue Reading →

NCAA Loses At U.S. Supreme Court — Again! (NCAA v. Alston)

College Sports (photo by Marilyn Swanson) By: Donald L Swanson On June 21, 2021, the U.S. Supreme Court orders the National Collegiate Athletic Association (“NCAA”) to stop limiting “education-related compensation or benefits” that schools provide to student athletes—any such limitation violates U.S. antitrust laws. [Fn. 1] This is not the first time the U.S. Supreme Court... Continue Reading →

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