Who Gets the $4 Million Tax Refund in Bankruptcy: U.S. Supreme Court to Decide (Rodriguez v. FDIC)

By: Donald L. Swanson On June 28, 2019, the U.S. Supreme Court granted certiorari in the case of Rodriguez v. FDIC, (Supreme Court Case No. 18-1269). The case is about a $4 million tax refund received by a parent corporation in bankruptcy, based upon losses from one of its wholly owned subsidiaries.  The question is this:... Continue Reading →

Creativity in Mediation: An Important Role

By: Donald L. Swanson Here are a couple assumptions: Mediation is a creative process: it allows parties to think outside the box, discuss underlying issues, and customize a creative resolution. Adjudication, by contrast, is not: it resolves specific issues identified in pleadings. A Study A study titled “Creativity in Court-Connected Mediation: Myth or Reality?” [Fn. 1]... Continue Reading →

Estate Planning: A Frequently Used, But Rarely Successful, Defense Against Fraudulent Transfer Claims

By: Donald L. Swanson “Estate planning” is a frequently utilized, but rarely successful, defense against fraudulent transfer claims. Here’s why: estate planning strategies that make perfect sense when everyone is solvent become cloaked with “badges of fraud” amid insolvency, demonstrating “actual intent to hinder, delay or defraud creditors.” Estate planning to address financial defaults is usually... Continue Reading →

A Mediator/Arbitrator Malpractice Lawsuit: Haven’t Seen This Before!

By: Donald L. Swanson This doesn’t happen every day: A mediator’s engagement agreement authorizes the mediator to arbitrate disputes about any settlement agreement the parties might reach in mediation; The mediation achieves a settlement agreement, but a dispute arises over an alleged mistake in the agreement document; and The mediator attempts to arbitrate the dispute and... Continue Reading →

Bankruptcy Laws for Puerto Rico: A Series of Unfortunate Technicalities and Screw-ups

By: Donald L. Swanson The U.S. Supreme Court has agreed to decide the constitutionality of the bankruptcy-type system under which Puerto Rico is operating.  The case is Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (Case No. 18-475). Sounds ominous . . . and monumental . . . , right? The reality... Continue Reading →

A Party’s Obligation to Pay a Mediator’s Fee is Enforced

By Donald L. Swanson On May 28, 2019, a U.S. District Judge issued an Order insisting that the Defendant pay mediator fees of $1,850.00 for a cancelled mediation. The case is Linares v. Suarez, in the U.S. District Court for Florida’s Middle District (Case No. 8:18-cv-985). Facts Here’s what happened. --Mediation Scheduled. Linares sued Suarez for... Continue Reading →

The Bankruptcy Code Needs an Advocate for Its Interests at U.S. Supreme Court — The Solicitor General is Not Adequate

By: Donald L Swanson The Bankruptcy Code is in a precarious position.  It is a “transformative piece of legislation,” but it is without a strong agency in the Executive Branch to interpret it, enforce it, and promote its interests. [Fn. 1] Each Federal agency is part of the Executive Branch and has an area of responsibility... Continue Reading →

Must Mediators of Disputes in Litigation be Lawyers?

By: Donald L. Swanson Many mediators, in a variety of contexts, are not lawyers. In the mediation of lawsuit disputes, however, lawyers predominate. And that makes practical sense—especially in complex cases. But in lawsuits, even complex ones, the mediator is not required to be an attorney. At least, that’s the opinion of the Attorney General for... Continue Reading →

“Kicking the Can Down the Road”: Family Businesses in Chapter 11

By: Donald L. Swanson “Kick the can down the road” is an adage that means this: “to delay or avoid dealing with a problem.” Before Bankruptcy That’s what family businesses in financial stress do, outside of bankruptcy. They deal with unhappy creditors by kicking the can down the road. Here’s why: cash resources are tight, and... Continue Reading →

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