On Bankruptcy and Mediation
A weapon (photo by Marilyn Swanson) By: Donald L Swanson Since Debtor “does not now seek to use that agreement as a weapon” against Creditor, Debtor’s “bankruptcy discharge renders the arbitration agreement unenforceable.” Rogne v. Digital Forensics Corp., Case No. 24-cv-2612 (D. Minn. 1/13/2025; Doc. 22, at 7) (emphasis added). Facts Debtor gets a Chapter 7... Continue Reading →
Overriding? (Photo by Marilyn Swanson) By: Donald L Swanson This new bankruptcy opinion denies a creditor’s Motion to compel arbitration: Samson v. The LCF Group, Inc. (In re Bridger Steele, Inc.), Adv. No. 2:24-ap-2003 in Montana Bankruptcy Court (decided September 30, 2024; Doc. 10). What follows is a summary of that opinion’s arbitration-denial analysis. Background The... Continue Reading →
By: Donald L SwansonI’m serving on a Drafting Committee of the Uniform Law Commission for a uniform law on assignment for benefit of creditors (“ABC”). A draft of such a uniform law is coming together, with lots of input from many people and organizations. And we are always looking for more input! At one point, I’m... Continue Reading →
Nonconformity (photo by Marilyn Swanson) By: Donald L Swanson Provisions of the Bankruptcy Code and the Federal Arbitration Act can collide. How those collisions are to be sorted out remains an open question. The U.S. Supreme Court recently issued an opinion on remedies for a violation of the U.S. Constitution’s uniformity requirement for bankruptcy laws[Fn. 1];... Continue Reading →
Waving easily (photo by Marilyn Swanson) By: Donald L Swanson Contracts can provide for the arbitration of disputes. And those arbitration rights are enforced by the Federal Arbitration Act. But contractual arbitration rights can be waived. And the question is this: Is it easy . . . or hard . . . to waive those rights?... Continue Reading →
Conflict (photo by Marilyn Swanson) By: Donald L Swanson We have a direct statutory conflict: one statute requires an ERISA dispute to be resolved in arbitration; but a bankruptcy statute requires the same dispute to be resolved in bankruptcy. Which statute should prevail? The bankruptcy statute, of course. That’s the conclusion of In re Yellow Corp.[Fn.... Continue Reading →
Allowing traffic to pass through (photo by Marilyn Swanson) By: Donald L Swanson Every now and then, the U.S. Supreme Court takes an arbitration case. And it almost always rules in favor of arbitration over litigation. Fortunately, the Supreme Court has, thus far, let arbitration vs. bankruptcy questions pass through without granting certiorari. Presumably, letting them pass... Continue Reading →
Request denied? (Photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy Court denies a party’s request to enforce arbitration of a legal malpractice claim—and then dismisses that malpractice claim for failure to state a claim. The opinion is Murray v. Willkie Farr & Gallagher LLP (In re Murray Energy Holdings Co.), Adv. Pro. No. 22-2007, Southern... Continue Reading →
Offensive or defensive deployment? (Photo by Marilyn Swanson) By: Donald L Swanson It's a defense v. offense distinction: Defense—An objection and counterclaim designed to diminish or zero-out a proof of claim in bankruptcy is not subject to arbitration; but Offense—An objection or counterclaim designed to do anything more . . . can be compelled to arbitrate.... Continue Reading →
Nonconformity (photo by Marilyn Swanson) By: Donald L Swanson When parties contract for arbitration of their disputes: they are “forgoing the . . . appellate review of the courts in order to realize the benefits of private dispute resolution”; California’s state law in question “coerces parties to opt for a judicial forum” instead of the arbitration... Continue Reading →
MEDIATBANKRY 