On Bankruptcy and Mediation
Schrödinger’s cat? (Photo by Marilyn Swanson) By: Donald L Swanson Defendants see “both an unenforceable settlement and a binding unilateral agreement simultaneously emerging, like Schrödinger's cat,” from their lawsuit with Plaintiff, but “only one exists” and “the District Court did not err in finding the settlement agreement valid.” --From Rivera v. Sharp, Case No. 21-2254, at... Continue Reading →
An Illinois city (Photo by Marilyn Swanson) By: Donald L Swanson An assignment for benefit of creditor (“ABC”) is, historically, a nonjudicial process for administering the affairs of a failed business. ABC laws are rooted in English common law and predate enactment of federal bankruptcy laws in the U.S.[Fn. 1] An ABC is made by a... Continue Reading →
Face-to-face discussions (photo by Marilyn Swanson) By: Donald L Swanson Common Practice. A common practice in these United States is for commercial lawsuits to be mediated in a caucus-only format. That means: the parties never see each other during the mediation, except during the mediator’s opening comments and on visits to the toilet; andthe mediator shuttles... Continue Reading →
On a quest (photo by Marilyn Swanson) By: Donald L Swanson I’m on a curiosity-quest to find the first-ever U.S. Supreme Court opinion on the subject of bankruptcy. Excitement arises, for a moment, upon discovering Gibbs v. Gibbs, 1 U.S. 371 (1788). After all, Gibbs v. Gibbs: deals with priority of a judgment lien, a fraudulent... Continue Reading →
Honest Abe (photo by Marilyn Swanson) By: Donald L Swanson A negotiator’s reputation for honesty minimizes the danger of being deceived. That’s the finding of a recent study. [Fn. 1, the “Study”] Background Reputations endow negotiators with a set of expectations about their intentions and behaviors, influence interpretations of their behavior, and impact response to their... Continue Reading →
Avoid this? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s a hard-knocks rule for debtor attorneys: Never file Chapter 7 for a corporation or an LLC. Chapter 7 has always been a grave yard for failed Chapter 11s: that’s where Chapter 11 cases go when debtors can’t get a Chapter 11 plan confirmed. For example,... Continue Reading →
Food for thought? (Photo by Marilyn Swanson) By: Donald L Swanson Every now and then we get a glimpse into the past . . . that casts light on issues and events of today. One such glimpse is a Harvard Law Review article from 1909: “The Effect of a National Bankruptcy Law upon State Laws.”[Fn. 1].... Continue Reading →
Wading in—again (photo by Marilyn Swanson) By: Donald L Swanson Three InfoWars entities file voluntary bankruptcy on April 17, 2022, under Subchapter V of Chapter 11.[Fn.1] And a storm of controversy immediately erupts on whether the three entities actually qualify for Subchapter V relief. On June 10, 2022, the Bankruptcy Court enters an “Agreed Order Dismissing... Continue Reading →
Re-envisioning? (Photo by Marilyn Swanson) By: Donald L Swanson State laws on assignments for benefit of creditors (“ABC”) have been around for a long time. But times have changed over the last half-century. Specifically, the bankruptcy alternative has changed dramatically: from a harsh remedy under the Bankruptcy Act of 1898;to the current Bankruptcy Code, with its... Continue Reading →
Bifurcated? (Photo by Marilyn Swanson) By: Donald L Swanson When an enforcement authority issues guidelines to its personnel for making enforcement decisions and makes those guidelines public, all who are subject to that authority should sit-up and take notice. On June 10, 2022, the U.S. Trustee’s Office, Department of Justice, issues “Guidelines” to its personnel... Continue Reading →
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