On Bankruptcy and Mediation
Preempting? (photo by Marilyn Swanson) By: Donald L Swanson The interface between federal bankruptcy law and similar state laws has a long history, going back to at least 1819, when the U.S. Supreme Court rules that a state insolvency law: may discharge a person from debtor’s prison; butmay not discharge that person’s debt.[Fn. 1] A more... Continue Reading →
An effective tool (photo by Marilyn Swanson) By: Donald L Swanson Mediation-in-bankruptcy has been an effective tool for resolving mass tort cases. That effectiveness has been for the benefit of all parties involved, such as: helping to maximize recoveries for tort claimants;helping to allocate scarce funds among competing tort claimants and other creditors; andhelping to keep... Continue Reading →
The same . . . or different? (photo by Marilyn Swanson) By: Donald L Swanson “2 There is one inconsequential difference — § 1228(a) refers to debt ‘of a kind specified,’ while § 1192(2) refers to debt ‘of the kind specified.’” [Fn. 1] This "inconsequential difference" quotation, from footnote 2 in the Fourth Circuit’s Cantwell v.... Continue Reading →
Waived protections? (Photo by Marilyn Swanson) By: Donald L. Swanson Is the § 363(m) limit on appeal of a sale order “subject to waiver”? That’s the essential question before the U.S. Supreme Court in MOAC Mall Holdings LLC v. Transform Holdco LLC, Case No. 21-1270 (certiorari granted June 27, 2022). A deep circuit split exists on... Continue Reading →
Staying alive? (Photo by Marilyn Swanson) By: Donald L Swanson Both the Johnson & Johnson and InfoWars bankruptcies are filed to address tort lawsuits. Johnson & Johnson's bankruptcy survives a motions to dismiss.[Fn. 1] InfoWars' bankruptcy doesn’t.[Fn. 2] What follows is an effort to compare and contrast the two cases, revealing why one survives and the... Continue Reading →
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 →
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 →
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 →
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 →
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 →
MEDIATBANKRY 