On Bankruptcy and Mediation
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 →
By: Donald L. Swanson The intersection of state escrow laws and federal bankruptcy laws can create confusion and surprise for contracting parties. The Problem & Four Examples The problem creating such confusion and surprise is this. State escrow laws: are, typically, defined by the common law; lack precise details; and are often applied in bankruptcy... Continue Reading →
Keeping options open? (photo by Marilyn Swanson) By: Donald L Swanson We’ve all been there: when faced with alternative courses of action, we make a choice; but time and subsequent developments show we made the wrong choice. So, a hard-knocks rule is this: keep all options and alternatives open and viable for as long as possible;... Continue Reading →
Transforming (photo by Marilyn Swanson) By Donald L. Swanson A study report on mediators is, “Becoming the change we wish to see: The unexpected benefits of conflict resolution work,” by Susan Raines, published January 2018 in Conflict Resolution Quarterly, at 319-327. The author begins the study report like this: “Gather any group of mediators, ombuds, relief... Continue Reading →
Reprinted with permission from the ABI Journal, Vol. XLIII, No. 9, September 2024. View the original publication here. Filing an involuntary bankruptcy petition as a petitioning creditor is a precarious action. The risks involved are intense, including potential liability for the debtor's costs, attorneys' fees, actual damages and punitive damages.1 To qualify as an involuntary... Continue Reading →
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