Are Stern & Granfinanciera Going The Way Of Dewsnup: Being Limited To Their Narrow Holdings?

By: Donald L. Swanson “Movants are asking this Court to extend the holdings of [Stern v. Marshall and Granfinanciera] in order to find that 28 U.S.C. § 157(a) is unconstitutional . . . The Court declines to make that leap.” Chief Judge Christopher S. Sontchi, Delaware Bankruptcy Court, in Paragon v. Noble Corporation, A.P. No. 17-51882,... Continue Reading →

Can Obeying a Court Order Prevent Contempt Sanctions? (Taggart v. Lorenzen)

Note:  This article was published, originally, by the American Bar Association, in its "Preview of United States Supreme Court Cases," Issue No. 7, Vol 46, page 50, on April 15, 2019.  By: Donald L. Swanson CASE AT A GLANCE Let’s say you sue a defendant in state court for injunctive relief. The defendant then files bankruptcy and receives... Continue Reading →

Getting Away With Corporate Raiding: A New In re Tribune Opinion and § 546(e) Safe Harbor

By: Donald L. Swanson The Tribune Company (yes, the formerly-venerable Chicago Tribune newspaper) filed bankruptcy in 2008, after being crippled by a corporate raid in 2007 Here’s What Happened Tribune’s dominant shareholders (they owned 33%) wanted to cash out their shares of stock. So they engineered a scheme, whereby Tribune borrowed money to buy its own... Continue Reading →

Congress Needs to Help Family Businesses in Financial Stress — Not Punish Them!

By: Donald L. Swanson We live and work in a market economy, here in these United States. The market is our economic judge: it validates—or invalidates—business decisions, and it picks winners and losers. The market is an efficient, impartial and unbiased judge. But it is also cruel and unforgiving. The result is that many businesses succeed.... Continue Reading →

History of Bankruptcy: From the Torah, the Talmud and the Mishnah

By: Donald L. Swanson For starters, see my "Disclaimer" below. “The Torah is the Hebrew Bible,” consisting of the books of Genesis, Exodus, Leviticus, Numbers, Joshua, Psalms, Book of Ruth, etc.; and the Talmud “is the compilation of the historical rabbis ‘discussing’ or ‘debating’ what the Torah means.” [Fn. 1] The Mishnah is “an edited record”... Continue Reading →

Unbridled Credit-Bidding vs. Maximizing Value: U.S. Supreme Court and First Circuit Cases

By: Donald L. Swanson Imagine you’re at an auction and multiple parties are bidding on an item.  At a certain price, all bidders drop out except two.  These two keep bidding, and the price goes up. One bidder finally prevails—at a very high price. This happens.  It’s called competitive bidding at a fair auction.  This... Continue Reading →

The Problem of Pass-Through Tax Liability from Liquidation of a Family Business — A Chapter 11 Solution?

By: Donald L. Swanson Hypothetical: A family business has been successful for many years. But obsolescence of its products and services is taking a toll: the business is now insolvent, its assets are fully encumbered, no one is interested in buying the business as a going concern, and family shareholders have guaranteed most of its debts.... Continue Reading →

The Constitution’s “Bankruptcies” Clause: Assumed but Not Discussed or Cited in U.S. Supreme Court Bankruptcy Opinions

By: Donald L Swanson “It’s assumed.” That's the answer I heard, recently, to this question: “Why does the U.S. Supreme Court fail to discuss, or even cite, the ‘Bankruptcies’ clause of the U.S. Constitution when it decides constitutional questions of bankruptcy law?” [Fn. 1] Say what?!  Let’s get this straight: The U.S. Constitution has a clause empowering... Continue Reading →

Contract Rejection Damages as Administrative Claims in Bankruptcy

By: Donald L. Swanson “What is at issue for these parties, practically speaking, is whether to classify as prepetition or post-petition liability any damages caused by Debtor’s failure to honor its executory obligations.” --U.S. First Circuit Court of Appeals in Mission Product Holdings v. Tempnology, LLC., Case No. 16-9016 (1/12/2018), at 14. Current Posture Mission v.... Continue Reading →

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