On Bankruptcy and Mediation
An effective tool (photo by Marilyn Swanson) By: Donald L Swanson Mediation-in-bankruptcy has been an effective tool for resolving mass tort cases. That effectiveness has been for the benefit of all parties involved, such as: helping to maximize recoveries for tort claimants;helping to allocate scarce funds among competing tort claimants and other creditors; andhelping to keep... Continue Reading →
The same . . . or different? (photo by Marilyn Swanson) By: Donald L Swanson “2 There is one inconsequential difference — § 1228(a) refers to debt ‘of a kind specified,’ while § 1192(2) refers to debt ‘of the kind specified.’” [Fn. 1] This "inconsequential difference" quotation, from footnote 2 in the Fourth Circuit’s Cantwell v.... Continue Reading →
Not tough and firm (photo by Marilyn Swanson) By: Donald L Swanson Being “tough and firm” in negotiations: Takes “less effort than being warm and friendly”; Results “in better financial outcomes; has “no apparent social cost”; butis commonly viewed, incorrectly, as less effective than “warm and friendly.” Such are the conclusions drawn from a four-part study [Fn. 1]... Continue Reading →
Public rights? (photo by Marilyn Swanson) By: Donald L Swanson Justice Stephen G. Breyer is now retired from the U.S. Supreme Court, serving from August 3, 1994, to June 30, 2022. One of his legacies—and an exceedingly important one—is this: he has worked, successfully, to erase “public rights” from the lexicon of controlling bankruptcy law. What... Continue Reading →
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 →
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 →
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 →
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 →
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 →
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 →
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