Effects of Executory Contract Rejection — At U.S. Supreme Court

By: Donald L. Swanson Here’s a case about the effects of executory contract rejection. While its focus is on “intellectual property” rights under § 365(n) [Fn. 1], the case also delves into the effects of rejection for all types of executory contracts under § 365(g) [Fn. 2]. And this case demonstrates the hazards of a failure... Continue Reading →

Successor Liability After Bankruptcy Sales: Actual Knowledge v. Constructive Notice, at U.S. Supreme Court

By: Donald L. Swanson Imagine buying assets out of bankruptcy at a fair price, only to have a previously-unknown liability tag along. --Surprise, surprise! The U.S. Supreme Court has an opportunity to weigh-in on such a “Surprise, surprise” issue.  A petition for writ of certiorari is pending in a case where this could happen—complete with a $63... Continue Reading →

Ignoring Constitution’s “Bankruptcy Clause” at U.S. Supreme Court — A Historical Peculiarity

By: Donald L Swanson “Congress shall have Power”: “To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States”; and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” U.S. Constitution, Art. I, Sec. 8, cls. 4 & 18 (emphasis added). Any opinion... Continue Reading →

Justice Kennedy: Last of Supreme Court’s “Old Bankruptcy Guard”

By: Donald L. Swanson Tuesday, July 31, 2018, is the last day of Anthony Kennedy’s three-decades-long service as a Justice of the U.S. Supreme Court (since February 18, 1988). On bankruptcy issues, Justice Kennedy did not author many opinions of any sort (majority, concurring or dissent). Nevertheless, he has always been a part of what I... Continue Reading →

Screwing Up Our Bankruptcy World — Again? (Arbitration Petition at U.S. Supreme Court)

By: Donald L. Swanson The U.S. Supreme Court has a history of screwing-up our bankruptcy world. Examples go back to the 1982 debacle called Northern Pipeline v. Marathon Pipe Line, where the Supreme Court came within one vote (one vote!) of declaring the entire Bankruptcy Code unconstitutional. A more recent example, Stern v. Marshall in 2011,... Continue Reading →

Who Says Bankruptcy Judges Don’t Have Article III Independence?!

By: Donald L Swanson Actually, the U.S. Supreme Court does . . . but they’re wrong. Here’s why. Some History Back in early 1980s, when the Bankruptcy Code was but a few years old, the U.S. Supreme Court struggled with bankruptcy court jurisdiction. --Northern Pipeline That struggle resulted in the Supreme Court's 1982 Northern Pipeline v.... Continue Reading →

Inequality at U.S. Supreme Court: Administrative Agencies v. Bankruptcy Courts (Lucia v. SEC)

By: Donald L. Swanson “Mom always liked you best.” --Smothers Brothers. I finished reading the U.S. Supreme Court’s Lucia v. SEC opinion (decided June 21, 2018). And I’m irritated: the entire situation is just-not-fair to bankruptcy courts and judges. --It’s obvious that the U.S. Supreme Court always liked judicial authority of administrative agencies, like the Securities... Continue Reading →

Constitutional Preemption v. Unconstitutional Commandeering, at U.S. Supreme Court (Murphy v. NCAA & more)

By: Donald L. Swanson Sports gambling is always a sexy topic.  And the U.S. Supreme Court jumped in, recently, by overturning a federal statute that banned it. Supreme Court Opinion The Supreme Court’s opinion is anything but sexy.  One reporter says it is, “boring as #@!!” The opinion deals with issues of constitutional law.  But it’s not the... Continue Reading →

Fraudulent Transfers: U.S. Supreme Court Lets an Injustice Stand (Henry v. Weiss)

By: Donald L. Swanson The case is Henry & Buresh v. Weiss (Supreme Court Case No. 17-1210). The U.S. Supreme Court denied certiorari on May 29, 2018. This denial allows an injustice to stand, which is a travesty. I’ll try to explain. Facts Michael Bello was sole shareholder, director, and president of Walldesign, Inc. Over a... Continue Reading →

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