Do Creditors Vote on Subchapter V Plans? (In re Desert Lake / In re Pearl Resources)

Voting (photo by Marilyn Swanson) By: Donald L Swanson In Subchapter V of the Bankruptcy Code, the “Post-Petition Disclosure and Solicitation” provisions of § 1125 do not apply without a specific court order (see § 1181(b)). Voting Questions So, a question exists on how the plan voting provisions of § 1126 and Fed.Bankr.R. 3018 might apply... Continue Reading →

Mediation: The Same In War And Peace?

War and Peace By: Donald L Swanson Many factors motivate disputing parties parties to mediate;Disputing parties are rational actors, driven by self-interest;There is a a strong relationship between conflict costs and the willingness of the parties to mediate; andA precondition for negotiations is a perception by the disputing parties that, (i) a negotiated outcome is preferable... Continue Reading →

U.S. Solicitor General: A Biased Advocate Before The U.S. Supreme Court On Bankruptcy Issues–Again (City of Chicago v. Fulton)

City of Chicago (Photo by Marilyn a Swanson) By: Donald L Swanson The case before the U.S. Supreme Court is City of Chicago v. Fulton, Case No. 19-357.  It is scheduled for oral argument on Tuesday, October 13, 2020. Facts The essential facts are these: City of Chicago impounds Fulton’s car to collect fines and penalties... Continue Reading →

When is a Dispute Ripe for Mediation? (In re Diocese of Buffalo)

Are they ripe? (Photo by Marilyn Swanson) By: Donald L Swanson The timing of mediation efforts in litigation is important (and can be tricky).  Studies show that early is better than late.  But in early mediation efforts, a tension exists between, (i) acting promptly, and (ii) assuring that parties have adequate information to make informed decisions.... Continue Reading →

Bankruptcy Laws v. Insolvency Laws: A Debtors’ Prison Distinction (Sturges v. Crowninshield)

Flying high (photo by Marilyn Swanson) By: Donald L Swanson Over the past two hundred and thirty years, the United States of America has been flying high on a massive economic expansion, punctuated periodically by times of economic stress or crisis. Bankruptcy laws have struggled to keep pace with the expansion and occasional turmoil. An earliest... Continue Reading →

Mediation Costs In Sanctions For Frivolous Appeal (Quincy Bioscience v. Ellishbooks)

Frivolous? (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Quincy Bioscience, LLC v. Ellishbooks, et al., Case No. 19-1799 (7th Cir.) (decided July 22, 2020).   The procedural background is this: Ellishbooks loses a case before the U.S. District Court for the Northern District of Illinois (Doc. 1:17-cv-08292) and appeals to the Seventh... Continue Reading →

Force Majeure Contract Provisions (Contrasting Court Opinions)

Flooding — an unforeseen event (photo by Marilyn Swanson) By Donald L. Swanson A business contract will often have a “force majeure” provision, which excuses a party from performing under the contract when performance is prevented by unforeseen circumstances. Force majeure provisions, while commonly included in business contracts, rarely take effect and are rarely even relevant—until... Continue Reading →

Pandemic-Induced “Impossibility” Of Performing A Mediated Settlement? (Belk v. LeChaperon)

Impossibility? (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is Belk, On behalf of herself and All others similarly situated v. Le Chaperon Rouge Co., et al., Case No. 1:18cv1954 in U.S. District Court, N.D. Ohio (decided July 6, 2020). The opinion addresses Plaintiffs’ Motion to enforce a mediated settlement agreement.  Defendants oppose the Motion on grounds... Continue Reading →

Bankruptcy Laws Must (and do) Change With the Economy (Continental Illinois v. Chicago, Rock Island)

The tendency of legislation and of judicial interpretation has been uniformly in the direction of expanding the use of the bankruptcy power to meet the needs of an expanding economy.

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