On Bankruptcy and Mediation
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 →
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 →
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... Continue Reading →
By Donald L. Swanson Two long-standing members of the U.S. Supreme Court—each served three decades—are recently departed from the Bench: Justice Antonin Scalia served from September 26, 1986, until his death on February 13, 2016; and Justice Anthony Kennedy served from February 18, 1988, until his retirement on July 31, 2018. Both of these Justices had... Continue Reading →
By: Donald L Swanson Bankruptcy laws in these United States have always struggled for acceptance by the judiciary. Judicial Restrictions on Congress’s Bankruptcy Power Federal courts, in many respects since 1800, have tried to restrict the bankruptcy power granted to Congress by the U.S. Constitution [Fn. 1]. For example: --In the 1800s and early 1900s, courts... Continue Reading →
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 →
By: Donald L. Swanson “we assume without deciding, that the fraudulent conveyance claims in this case are Stern claims.” [Fn. 1] From unanimous U.S. Supreme Court decision in Executive Benefits Insurance Agency v Arkison (Decided June 6, 2014). [Fn. 2] It’s a curious thing, this failure-to-decide the constitutional status of fraudulent transfer claims in bankruptcy. Here’s... Continue Reading →
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 →
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 →
By: Donald L. Swanson The U.S. Supreme Court’s Dewsnup v. Timm opinion (502 U.S. 410 (1992)) was wrongly decided and needs to be overturned. Unfortunately, that's not going to happen any time soon, since the U.S. Supreme Court denied certiorari on Tuesday (February 19, 2019) in the case of Ritter v. Brady, Supreme Court Case No. 18-747.... Continue Reading →
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