Author: mediatbankry

My name is Donald L. Swanson (please call me “Don”). I’m an attorney in Omaha, Nebraska, and am a shareholder in the law firm of Koley Jessen P.C., L.L.O. I’ve been practicing business bankruptcy law for more than four decades and represent all types of bankruptcy constituencies, including debtors, creditors, committees, trustees, and § 363 purchasers. I have extensive mediation experience in both bankruptcy and non-bankruptcy courts. Moreover, I have a decades-long background in resolving multi-party disputes while representing committees and trustees.

“Federal Policy Favoring Arbitration” Is Actually “To Make Arbitration Agreements As Enforceable As Other Contracts, But Not More So” (Brown & Sundance)

Favoring (photo by Marilyn Swanson) By: Donald L Swanson A recent bankruptcy opinion[fn. 1] recites the following arbitration policies under the Federal Arbitration Act (“FAA”), based on an old U.S. Supreme Court opinion[fn. 2]: “The FAA is rooted in the notion that arbitration agreements are private contracts affecting commerce, creating a strong presumption in favor of... Continue Reading →

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“Ending Corporate Bankruptcy Abuse Act”: Three Strikes Already!

Abuse? (Photo by Marilyn Swanson) By: Donald L Swanson A new, bipartisan bankruptcy bill in the U.S. Senate purports, according to an official document, to: “deter the Texas Two-Step”; and “ensure injury victims have a chance to be heard in court.” In my lexicon, this bill already has three strikes against it and should be rejected. ... Continue Reading →

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Mediation Confidentiality: How to Get Your Hands Slapped With a Sledge Hammer

By Donald L. Swanson Attorneys make mistakes.  It happens. Here’s a case where two competing attorneys each violate a court rule on mediation confidentiality:  In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The hand-slap The two attorneys get hauled before the Court to explain their dastardly deeds.  But in the end, they only get... Continue Reading →

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Does A Canadian Retirement Plan Qualify For A Bankruptcy Exemption Tied To I.R.C. Requirements (Green v. Leibowitz)

Exempt assets? (Photo by Marilyn Swanson) By: Donald L Swanson Question: Can a retirement fund organized under Canadian law qualify for a state law exemption requiring that it “qualify as a retirement plan” under the Internal Revenue Code? This question gets all the way to the U.S. Seventh Circuit Court of appeals, which issues a “No”... Continue Reading →

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Do “Champerty” Laws Impair § 363 Sales of Estate Claims? (Crabtree v. Allstate)

A champ (photo by Marilyn Swanson) By: Donald L Swanson The general rule is that claims of the bankruptcy estate against third parties (e.g., preference claims and tort claims) can be sold to third parties in a § 363 sale.[Fn. 1] However, a recent opinion from the U.S. Fifth Circuit Court of Appeals discusses whether a... Continue Reading →

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U.S. Supreme Court’s Purdue Pharma 4-Justice Dissent: How Did This Opinion Not Get A Fifth Vote?!!

By: Donald L Swanson Four U.S. Supreme Court justices (Kagan, Kavanaugh, Roberts and Sotomayor) provide the following summary of their Purdue Pharma dissent in the Purdue Pharma case. Wrong & Devastating Today’s five-justice majority opinion is wrong on the law and devastating for more than 100,000 opioid victims and their families: the majority opinion rewrites the... Continue Reading →

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Is the Proposed Guidance for Random Assignment in Civil Cases a Harbinger for Bankruptcy? Experts Weigh In

Reprinted with permission from the ABI Journal, Vol. XLIII, No. 5, May 2024. View the original publication here. The U.S. Judicial Conference Committee on Court Administration and Case Management proposed guidance on March 121 to promote random case assignment in civil cases (not criminal or bankruptcy cases) in districtcourts. The Judicial Conference later clarified2 that... Continue Reading →

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Renewed Focus On Constitution’s Uniformity Requirement For Bankruptcy Laws (Siegel & Hammons)

Uniformity? (Photo by Marilyn Swanson) By: Donald L Swanson The bankruptcy clause of the U.S. Constitution focuses on a requirement of uniformity. Here’s the Constitution’s language: “The Congress shall have power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” [Article I, Section 8, Clause 4... Continue Reading →

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Bankruptcy Code v. Federal Arbitration Act . . . & The Constitution’s Uniformity Requirement

Nonconformity (photo by Marilyn Swanson) By: Donald L Swanson Provisions of the Bankruptcy Code and the Federal Arbitration Act can collide. How those collisions are to be sorted out remains an open question. The U.S. Supreme Court recently issued an opinion on remedies for a violation of the U.S. Constitution’s uniformity requirement for bankruptcy laws[Fn. 1];... Continue Reading →

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Arbitration Rights Are Now Easily Waived?! (Supreme Court’s Thomas v. Pawn American)

Waving easily (photo by Marilyn Swanson) By: Donald L Swanson Contracts can provide for the arbitration of disputes.  And those arbitration rights are enforced by the Federal Arbitration Act. But contractual arbitration rights can be waived.  And the question is this: Is it easy . . . or hard . . . to waive those rights?... Continue Reading →

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