On Bankruptcy and Mediation
The Bankruptcy Act of 1800 By: Donald L Swanson 1800 is the year Congress adopts its first bankruptcy law under the "Bankruptcies" clause of the newly-ratified U.S. Constitution. Congress’s Bankruptcy Act of 1800 is modeled after England’s bankruptcy laws. But there is a significant difference: the focus of England’s bankruptcy laws, back then, is exclusively on... Continue Reading →
By: Donald L Swanson The opinion is Imamura v. General Electric Co., Case No. 19-1457 in the U.S. First Circuit Court of Appeals (issued April 24, 2020). Facts In 2011, an earthquake-induced tsunami struck the Fukushima Daiichi Nuclear Power Plant in Japan, triggering explosions and a nuclear disaster, which destroyed property and livelihoods of residents in... Continue Reading →
An attorney By: Donald L Swanson The Bankruptcy Court opinion is in In re Penland Heating And Air Conditioning, Inc., Case No. 20-01795 (Bankry.E.D.N.Car.)(decided June 11, 2020). Issue The In re Penland issue is this: should a Subchapter V Trustee be allowed to hire an attorney, as common practice, at the beginning of a Subchapter V... Continue Reading →
Map of Puerto Rico By: Donald L Swanson Mediation is playing a central role in Puerto Rico’s bankruptcy. But mediating parties could not resolve an Appointments Clause dispute under the U.S. Constitution. So, the U.S. Supreme Court recently resolved it for them. And the Supreme Court's decision is a welcome affirmation of the legitimacy of actions... Continue Reading →
A closed door By: Donald L Swanson “We need not resolve” Appellants’ arguments, but we find such arguments to be fraught with “lack of statutory support, ambiguities, anomalies” and to conflict with “purposes of the Code.” --Second Circuit Court of Appeals, from December 19, 2019, opinion in In re Tribune Company Fraudulent Conveyance Litigation. As a... Continue Reading →
By: Donald L. Swanson “Joint Session <———> Caucus Only” "Fact Disputes <———> Law Disputes" A continuum? (Photo by Marilyn Swanson) These are two sets of mediation continuums. Here’s a theory I've heard on how the “joint session” to “caucus only” continuum and the "fact disputes" to "law disputes" continuum overlap in commercial cases. I'd like to... Continue Reading →
By: Donald L Swanson Released water (photo by Marilyn Swanson) The opinion is In re Millennium Lab Holdings II, LLC, et al., 945 F.3d 126 (3d Cir. 2019). On March 18, 2020, a Petition for writ of certiorari is filed from this opinion (Supreme Court Case No. 19-1152). On May 26, 2020, the Supreme Court denies... Continue Reading →
By: Donald L Swanson Times have changed -- an 1800s courtroom Decades ago, there was one way to litigate: by warm-body witnesses, attorneys, judges, etc., present in the courtroom. It’s not like anyone decided, “Hey . . . in-person is the best way.” It’s simply that, there was no other way. Technology Advances But electronic communications... Continue Reading →
A Bed & Breakfast (photo by Marilyn Swanson) By: Donald L Swanson Chapter 11 Debtor owns her home and uses it as a Bed & Breakfast. The mortgage on Debtor's B&B/residence is her primary debt. This raises Subchapter V issues like: Eligibility—is her primary debt a consumer debt or a business debt?Eligibility—is her bankruptcy a "single... Continue Reading →
Judge Irving Kaufman By: Donald L. Swanson Judge Irving Kaufman is famous for many things, such as presiding over the Rosenberg espionage trial and rejecting the U.S. government’s attempt to deport John Lennon to the United Kingdom. But Judge Kaufman’s greatest legacy may be for his role in developing mediation as a primary dispute resolution... Continue Reading →
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