Mediating Large/Complex Cases: The Mediator Must Have A Plan (In re City of Detroit)

Working a plan? (photo by Marilyn Swanson) By: Donald L Swanson In large, complex bankruptcy cases: The mediator must have a plan;Otherwise, the mediator is going to get run over;These are tough cases with very experienced lawyers who often have significant resources to put into the fight; andThe mediator has to be just as resourceful, just... Continue Reading →

A Study Of Four Mediator Strategies And Their Effects

Reflecting back on what works and what doesn’t (photo by Marilyn Swanson) By: Donald L Swanson A recent research project measures the effects (both short and long term) of four mediator strategies on party attitudes and outcomes. [Fn. 1] What follows is a summary of the project’s findings on these mediator strategies: Eliciting Participant Solutions;Neutral Offering... Continue Reading →

Trillions Of Dollars In Civil Penalties: “Exhibit A” On Johnson & Johnson’s Need For Bankruptcy

By: Donald L Swanson "Trillions of dollars": That's the amount of civil penalty claims a group of 40 States are asserting against Johnson & Johnson for consumer protection law violations.  [Fn. 1] Such civil penalty claims: are independent of, and in addition to, any claims of individuals who used Johnson & Johnson’s talc products; andarise from... Continue Reading →

Bankruptcy: The BEST Way To Address Mass-Tort Claims Against Johnson & Johnson (In re LTL)

The BEST way? (Photo by Marilyn Swanson) By: Donald L Swanson Johnson & Johnson (“J&J”) sold baby powder for decades.  Today, J&J is facing tens of thousands of lawsuits alleging that its baby powder causes cancer.  And the number of new cancer claimants is increasing daily—with many thousands yet to be identified over decades to come.... Continue Reading →

Compensating Mediators: Procedural Guidance From Sears v. Lampert

Procedural guidance? (Photo by Marilyn Swanson) By Donald L. Swanson How are private practice mediators compensated in a bankruptcy case—procedurally? We have a new court order providing guidance on how such procedures can work. The new guidance is from Sears Holding Corp. v. Lampert (In re Sears Holdings Corp.), Adv. Pro. No. 19-08250, SDNY Bankruptcy Court. ... Continue Reading →

Subchapter V Trustees: Satisfying The § 1183(b)(3) Duty To “Appear And Be Heard”

Appearing and being heard? (Photo by Marilyn Swanson) By: Donald L Swanson "The trustee shall . . . appear and be heard at . . . any hearing that concerns . . . the value of property . . . confirmation of a plan . . . sale of property." § 1183(b)(3) (emphasis added). In every... Continue Reading →

Honesty, the Small Cheat, and Reputation

By: Donald L Swanson Business people value their reputations because they take pride in their good names, and “not for some nebulous financial gain.” They: are guided “by their consciences”; and avoid cheating and “keep promises” because they “believe it is right to do so, not because it is good business.” [Fn. 1] The internal drive... Continue Reading →

Mediators: Reject A Binary Equation — “Either This Or That” (In re City of Detroit)

“Either this or that” (photo by Marilyn Swanson) By Donald L. Swanson Here’s an important rule for mediators: When the parties try to present you with a binary equation—“either this or that”—reject it; insteadGet the parties involved in the process with you—try to help think your way out of the binary box they are trying to... Continue Reading →

Subchapter V Trustee Duties: Facilitation Conflicts With Other Statutory Duties

Rainbow—a spectrum of light (photo by Marilyn Swanson) By: Donald L Swanson “The [Subchapter V] Trustee shall— . . . facilitate the development of a consensual plan of reorganization.”  11 U.S.C. § 1183(b)(7). Facilitation is a mediator-like tool that can be used by every bankruptcy trustee in every case.  Conflicting Duties For Subchapter V trustees, however,... Continue Reading →

When “Unimpaired” =/= Pay In Full (In re Hertz)

Unimpaired (photo by Marilyn Swanson) By Donald L. Swanson Claims are “impaired,” unless the plan “leaves” their rights “unaltered.”  § 1124(1). This rule is not as simple and unequivocal as it seems, according to an In re Hertz opinion. [Fn. 1]   Here’s why. Plan Treatment of Unsecured Claims Claims of unsecured creditors in the Hertz bankruptcy... Continue Reading →

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