On Bankruptcy and Mediation
Not uniform (photo by Marilyn Swanson) By Donald L. Swanson Here are some reasons why a uniform law on the subject of assignments for benefit of creditors ("ABC") is needed. Bankruptcy Analogy The need for a uniform ABC law is the same as the need behind the “uniform” bankruptcy law requirement in the U.S. Constitution—only, it’s... Continue Reading →
For publication? (Photo by Marilyn Swanson) By: Donald L Swanson U.S. Courts of Appeals frequently issue opinions designated “Not for Publication” or “Non-Precedential” or something similar (let’s call them “unpublished opinions”). Question: What, precisely, do such designations mean? Starting Places for Answers: The starting place for answering the question is Fed.R.App.P. 32.1(a), which provides: “A court... Continue Reading →
Finding precedents? (Photo by Marilyn Swanson) By: Donald L Swanson Recently, the U.S. Supreme Court denied certiorari in two cases involving bankruptcy questions: in Barings L.L.C. v. Ag Centre Street Partnership, Case No. 24-1322 (cert. denied on 11/10/2025), the Question Presented is, “Whether an appellate court can materially alter a consummated plan of reorganization without permitting... Continue Reading →
Reflecting (photo by Marilyn Swanson) By: Donald L Swanson A study titled, “What Works,” examines the effects of mediator strategies and behaviors on case outcomes in small claims cases. [Fn. 1] The study gathers information on both the short term (immediately after the mediation occurs) and long term (up to twelve months later) effects of mediator... Continue Reading →
A Caucus? (photo by Marilyn Swanson) By: Donald L Swanson A study [fn. 1] of mediations in small claims cases reaches this conclusion: The over-use of a caucus format is bad for mediation. Findings Specific findings supporting such conclusion include the following.[Fn. 2] In a small claims mediation, a greater percentage of time spent in caucus:... 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 →
Awaiting special deposits (photo by Marilyn Swanson) By: Donald L Swanson The Uniform Law Commission offers a Uniform Special Deposits Act. Such Act is designed to provide certainty on issues surrounding the ownership and use of money deposited in a bank account for a special purpose. Here’s an example of the type of disasters that could... Continue Reading →
BAPCPA By: Donald L Swanson The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) was signed into law on April 20, 2025, as “Public Law 109—8.” Here is a link to the text of that law. By the time of BAPCPA’s 2005 enactment, I had already been practicing bankruptcy law for a quarter century. ... Continue Reading →
A bad deal for some (photo by Marilyn Swanson) By: Donald L Swanson Back in September of 2021, a super-majority of voting plaintiffs (95%) supported confirmation of the Purdue Pharma bankruptcy plan. Under the plan, the Sackler family would contribute $6.0 billion to pay plaintiffs. The plan was confirmed by the Bankruptcy Court, and the super-majority... Continue Reading →
By: Donald L Swanson Congress must be permitted “at long last to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal.” Granfinanciera v. Nordberg, 492 U.S. 33, 94 (1989) (Justices Blackmun and O’Connor dissenting, emphasis added). Justices Blackmun and O’Connor were right, of... Continue Reading →
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