On Bankruptcy and Mediation
By Donald L. Swanson Attorneys make mistakes. It happens. Here’s a case where two competing attorneys each violate a court rule on mediation confidentiality: In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The hand-slap The two attorneys get hauled before the Court to explain their dastardly deeds. But in the end, they only get... Continue Reading →
Exempt assets? (Photo by Marilyn Swanson) By: Donald L Swanson Question: Can a retirement fund organized under Canadian law qualify for a state law exemption requiring that it “qualify as a retirement plan” under the Internal Revenue Code? This question gets all the way to the U.S. Seventh Circuit Court of appeals, which issues a “No”... Continue Reading →
A champ (photo by Marilyn Swanson) By: Donald L Swanson The general rule is that claims of the bankruptcy estate against third parties (e.g., preference claims and tort claims) can be sold to third parties in a § 363 sale.[Fn. 1] However, a recent opinion from the U.S. Fifth Circuit Court of Appeals discusses whether a... Continue Reading →
By: Donald L Swanson Four U.S. Supreme Court justices (Kagan, Kavanaugh, Roberts and Sotomayor) provide the following summary of their Purdue Pharma dissent in the Purdue Pharma case. Wrong & Devastating Today’s five-justice majority opinion is wrong on the law and devastating for more than 100,000 opioid victims and their families: the majority opinion rewrites the... Continue Reading →
Reprinted with permission from the ABI Journal, Vol. XLIII, No. 5, May 2024. View the original publication here. The U.S. Judicial Conference Committee on Court Administration and Case Management proposed guidance on March 121 to promote random case assignment in civil cases (not criminal or bankruptcy cases) in districtcourts. The Judicial Conference later clarified2 that... Continue Reading →
Uniformity? (Photo by Marilyn Swanson) By: Donald L Swanson The bankruptcy clause of the U.S. Constitution focuses on a requirement of uniformity. Here’s the Constitution’s language: “The Congress shall have power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” [Article I, Section 8, Clause 4... Continue Reading →
Nonconformity (photo by Marilyn Swanson) By: Donald L Swanson Provisions of the Bankruptcy Code and the Federal Arbitration Act can collide. How those collisions are to be sorted out remains an open question. The U.S. Supreme Court recently issued an opinion on remedies for a violation of the U.S. Constitution’s uniformity requirement for bankruptcy laws[Fn. 1];... Continue Reading →
Waving easily (photo by Marilyn Swanson) By: Donald L Swanson Contracts can provide for the arbitration of disputes. And those arbitration rights are enforced by the Federal Arbitration Act. But contractual arbitration rights can be waived. And the question is this: Is it easy . . . or hard . . . to waive those rights?... Continue Reading →
Photo is from the electronic docket for Sears bankruptcy case By Donald L. Swanson Here’s an under-appreciated fact: businesses (every one of them) face every-day risks that can destroy them. The rise and fall of the retailer, Sears, provides an illustration of the reality of such risks and how those risks ultimately prevail—even for the best... Continue Reading →
Can it be fixed? (Photo by Marilyn Swanson) By: Donald L Swanson 11 U.S.C. § 1191(c)(2) provides (emphasis added): “(c) . . . the condition that a plan be fair and equitable . . . includes . . . (2) . . . all of the projected disposable income of the debtor to be received in... Continue Reading →
MEDIATBANKRY 