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 →

A Study Of Four Mediator Strategies And Their Effects

Reflecting back on what works and what doesn’t (photo by Marilyn Swanson) By: Donald L Swanson A recent research project measures the effects (both short and long term) of four mediator strategies on party attitudes and outcomes. [Fn. 1] What follows is a summary of the project’s findings on these mediator strategies: Eliciting Participant Solutions;Neutral Offering... Continue Reading →

Middle Market Debtors Who Need Bankruptcy Relief: What To Do? (The “Nebraska Three-Step”)

Three steps? (photo by Marilyn Swanson) By: Donald L Swanson This is reality: Small businesses reorganize, all the time, under Subchapter V;Farmers reorganize, all the time, under Chapter 12; andLarge businesses reorganize, all the time, under regular Chapter 11. That’s because all of those three types of debtors have bankruptcy reorganization processes designed specifically for them.... Continue Reading →

What Does ”Affiliate Of An Issuer” Mean For Subchapter V Ineligibility? (In re Phenomenon)

Affiliates? (Photo by Marilyn Swanson) By: Donald L Swanson What the heck does this mean: “(1) Debtor.—The term ‘debtor’— . . . (B) does not include— . . . (Iii) any debtor that is an affiliate of an issuer, as defined in section 3 of the Securities Exchange Act of 1934 (15 U.S.C. 78c)”    —from Subchapter V’s... Continue Reading →

Trillions Of Dollars In Civil Penalties: “Exhibit A” On Johnson & Johnson’s Need For Bankruptcy

By: Donald L Swanson "Trillions of dollars": That's the amount of civil penalty claims a group of 40 States are asserting against Johnson & Johnson for consumer protection law violations.  [Fn. 1] Such civil penalty claims: are independent of, and in addition to, any claims of individuals who used Johnson & Johnson’s talc products; andarise from... Continue Reading →

Bankruptcy: The BEST Way To Address Mass-Tort Claims Against Johnson & Johnson (In re LTL)

The BEST way? (Photo by Marilyn Swanson) By: Donald L Swanson Johnson & Johnson (“J&J”) sold baby powder for decades.  Today, J&J is facing tens of thousands of lawsuits alleging that its baby powder causes cancer.  And the number of new cancer claimants is increasing daily—with many thousands yet to be identified over decades to come.... Continue Reading →

Johnson & Johnson: A Bankruptcy Filed In Good Faith

Good faith activity? (Photo by Marilyn Swanson) By: Donald L Swanson Johnson & Johnson and its affiliates (“J&J”) have been selling baby powder for decades. Along the way, studies began showing that talc in J&J’s baby powder can cause ovarian cancer and mesothelioma.  So, since 2016, over 38,000 lawsuits have been filed against J&J contending its... Continue Reading →

Compensating Mediators: Procedural Guidance From Sears v. Lampert

Procedural guidance? (Photo by Marilyn Swanson) By Donald L. Swanson How are private practice mediators compensated in a bankruptcy case—procedurally? We have a new court order providing guidance on how such procedures can work. The new guidance is from Sears Holding Corp. v. Lampert (In re Sears Holdings Corp.), Adv. Pro. No. 19-08250, SDNY Bankruptcy Court. ... Continue Reading →

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