High Costs Of Unconstitutionality, Potential Remedies, & Proposed Accountability (Siegel v. Fitzgerald)

Accountability? (Photo by Marilyn Swanson) By: Donald L Swanson It seems like a small thing: Chapter 11 debtors in two states paying lower quarterly fees thanChapter 11 debtors in the other 48 states. What’s the big deal?  Alabama and North Carolina throw a political hissy fit, three or four decades ago. They wanttheir own Bankruptcy Administrator... Continue Reading →

U.S. Constitution’s Bankruptcy Clause: On A Roll!

On a roll (photo by Marilyn Swanson) By: Donald L Swanson “The Congress shall have Power To . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.”  --U.S. Constitution’s Bankruptcy Clause (Art. 1, Sec. 8, cl. 4). An Old Losing Streak—Article III We all know about bankruptcy travails,... Continue Reading →

Trouble Brewing? Expanding Debtor/Creditor Laws vs. Constitution’s “Impairing Contracts” Clause

Impairment (photo by Marilyn Swanson) By: Donald L Swanson “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” --Art. I, Sec. 10, U.S. Constitution Increasingly, states are expanding their laws on debtor/creditor relationships, such as receiverships and assignments for benefit of creditors.  Some of these expansions look suspiciously... Continue Reading →

Bankruptcy: Authority For A Federal Agency’s Constitutional Law? (Jarkesy v. SEC)

Public rights? (Photo by Marilyn Swanson) There’s a new U.S. Circuit Court opinion on a person’s right to a jury trial, when sued by the Securities and Exchange Commission before one of its administrative judges. The opinion is Jarkesy v. SEC, case No. 20-61007 (5th Cir., issued May 18, 2022). And guess what:  the most-cited legal authority in... Continue Reading →

What’s Needed For Subchapter V ”Engaged In” Eligibility? Not Much—Not Even A Profit Motive (RS Air)

Engaged in commercial or business activity? (Photo by Marilyn Swanson) By: Donald L Swanson Subchapter V has an “engaged in commercial or business activities” criterion for eligibility. Court opinions applying such criterion appear to be trending in this direction: what’s required is “not much.” A new appellate opinion demonstrating this trend is In re RS AIR, LLC,... Continue Reading →

Middle Market Debtors Who Need Bankruptcy Relief: What To Do? (The “Nebraska Three-Step”)

Three steps? (photo by Marilyn Swanson) By: Donald L Swanson This is reality: Small businesses reorganize, all the time, under Subchapter V;Farmers reorganize, all the time, under Chapter 12; andLarge businesses reorganize, all the time, under regular Chapter 11. That’s because all of those three types of debtors have bankruptcy reorganization processes designed specifically for them.... Continue Reading →

What Does ”Affiliate Of An Issuer” Mean For Subchapter V Ineligibility? (In re Phenomenon)

Affiliates? (Photo by Marilyn Swanson) By: Donald L Swanson What the heck does this mean: “(1) Debtor.—The term ‘debtor’— . . . (B) does not include— . . . (Iii) any debtor that is an affiliate of an issuer, as defined in section 3 of the Securities Exchange Act of 1934 (15 U.S.C. 78c)”    —from Subchapter V’s... 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 →

Johnson & Johnson: A Bankruptcy Filed In Good Faith

Good faith activity? (Photo by Marilyn Swanson) By: Donald L Swanson Johnson & Johnson and its affiliates (“J&J”) have been selling baby powder for decades. Along the way, studies began showing that talc in J&J’s baby powder can cause ovarian cancer and mesothelioma.  So, since 2016, over 38,000 lawsuits have been filed against J&J contending its... 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 →

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