Can § 363(m)’s Appeal Protections Be Waived? (Mall v. Transform)

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 →

Why Johnson & Johnson’s Bankruptcy Is Still Alive . . . And InfoWars’ Isn’t

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 →

Mandatory v. Voluntary Mediations: Empirical Data from Pilot Programs

By: Donald L. Swanson We’ve all wondered, over the years, about the advisability and effectiveness of mandatory mediation. Turns out that mandatory and voluntary mediation programs can achieve about the same results when: --judges in a mandatory system accommodate participants who don't want to mediate, and --judges in the voluntary system encourage mediation. Empirical Data... Continue Reading →

Subchapter V’s $7.5 Million Debt Limit Is Renewed: With Bells & Whistles!

Renewal (photo by Marilyn Swanson) By: Donald L Swanson Congress and the President finally extend the $7.5 million debt limit for Subchapter V eligibility: by “unanimous consent” in the Senate;by a vote of 392 – 21 in the House; andsigned by the President on June 21, 2022. A legislative history of the new law is at... Continue Reading →

Mediating Large/Complex Cases: The Mediator Must Have A Plan (In re City of Detroit)

Working a plan? (photo by Marilyn Swanson) By: Donald L Swanson In large, complex bankruptcy cases: The mediator must have a plan;Otherwise, the mediator is going to get run over;These are tough cases with very experienced lawyers who often have significant resources to put into the fight; andThe mediator has to be just as resourceful, just... Continue Reading →

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 →

Blog at

Up ↑

%d bloggers like this: