On Bankruptcy and Mediation
Racing (photo by Marilyn Swanson) By: Donald L. Swanson Several months ago, I stumbled upon an old opinion out of the U.S. Supreme Court suggesting that the right of a creditor to race to the courthouse to collect on its claim against a debtor—and to win (or lose) that race—is a basic right of contract... Continue Reading →
A locomotive (photo by Marilyn Swanson) By: Donald L Swanson Here’s an interesting employment discrimination case that’s related to a prior bankruptcy: Palmer v. Union Pacific Railroad Co. (In re Palmer), Case No. 24-1212 (8th Cir., decided June 12, 2025).[Fn. 1] Background Debtor starts working for The Railroad in March 1998 as a Switchman/Brakeman, after disclosing... Continue Reading →
Illumination (photo by Marilyn Swanson) By: Donald L. Swanson The recent Boy Scouts opinion from the U.S. Court of Appeals for the Third Circuit (decided May 13, 2025) provides this Q & A illumination on the doctrine of equitable mootness: Question: Does the doctrine of equitable mootness preclude the requested relief on appeal? Answer: In light... Continue Reading →
Illuminated (photo by Marilyn Swanson By: Donald L Swanson Sub rosa plan issues have been around since the earliest days of my bankruptcy practice. Back in those days, unfortunately, I was never quite sure what a sub rosa plan might be. The dictionary definition of the term, “sub rosa,” is “confidentially; secretly; privately” or “happening or... Continue Reading →
From afar? (photo by Marilyn Swanson) By: Donald L Swanson Hypothetical: Your client in a complex Chapter 11 case has a dispute on a core issue with another party. The disputing parties decide that mediation might help resolve their dispute, and they can choose, under local rules, between two types of mediators: a private mediator (i.e.,... Continue Reading →
Coming out of the void? (Photo by Marilyn Swanson) By: Donald L Swanson Can a judgment that’s “void” for lack of jurisdiction become valid by the passage of time? That’s the question on which the U.S. Supreme Court granted certiorari (on June 6, 2025—in Case No. 24-808, Coney Island Auto Parts Unlimited, Inc. v. Burton, Chapter... Continue Reading →
Illumination (photo by Marilyn Swanson) By: Donald L Swanson How do the § 363(m) limitations on appeals of sale orders apply to sales under a confirmed plan? That’s an issue discussed at length, illuminated and resolved, under the term “statutory mootness,” in the Boy Scouts opinion from the U.S. Court of Appeals for the Third Circuit... Continue Reading →
Old overruling new? (Photo by Marilyn Swanson) By: Donald L Swanson “[T]he Supreme Court’s decisions evince a general skepticism about broad application of the Bankruptcy Code, which often has led to surprisingly narrow interpretations of relatively clear language,” which “challenges the common understanding of bankruptcy law as a domain of the Court’s plain-language interpretative practice.” [Fn.... Continue Reading →
Broken -- Exhibit by Nathan Sawaya (photo by Marilyn Swanson) By: Donald L Swanson I’ve been saying this for a long time: the mass tort system of justice in these United States is broken. Two piece of brokenness (there are lots of pieces) are: agonizingly long delays and excessive costs. We now have a new illustration... Continue Reading →
By: Donald L Swanson “Jun 02 2025 The Solicitor General is invited to file a brief in this case expressing the views of the United States.” That’s the latest entry by the U.S. Supreme Court on its electronic docket for Case No. 24-1062, The Hertz Corporation, et al v. Wells Fargo Bank, N.A., as Indenture Trustee.... Continue Reading →
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