On Bankruptcy and Mediation
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 →
An outlier (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy Court denies a motion to compel arbitration, because the arbitration agreement is a rejected executory contract. This appears to be a new and outlying theory for denying arbitration of bankruptcy disputes. The opinion is Highland Capital Management, L.P. v. Dondero et al., A.P. No. 21-03003,... Continue Reading →
Placing limitations upon (Photo by Marilyn Swanson) By: Donald L Swanson Currently before the U.S. Supreme Court on a Petition for writ of certiorari is Fast Auto Loans, Inc. v. Maldonado, Case No. 21-31 (Petition filed 7/7/2021). The Question In Fast Auto v. Maldonado, the question is this: Can state law place a limitation the operation... Continue Reading →
Rules for overlapping activity (photo by Marilyn Swanson) By: Donald L Swanson Agreements to mediate and agreements to arbitrate are both enforceable and effective. But how they are used together, when they overlap, can get tricky. That’s illustrated by the case of Garcia v. ISS Facility Services, Inc., et al. The case begins with a U.S.... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson We've dodged the bullet . . . again! Yesterday, the U.S. Supreme Court denied certiorari in GE Capital Retail Bank v. Belton (Case No. 20-481), where the question presented is: Which federal statutory scheme takes precedence in resolving important bankruptcy issues -- the Bankruptcy Code or the... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson Uh-oh! The U.S. Supreme Court is requiring action on a certiorari petition that presents a Bankruptcy Code meets Federal Arbitration Act (“FAA”) question. Here is what’s happened: November 10, 2014: SDNY Bankruptcy Judge, Hon. Robert D. Drain, refuses to allow arbitration of a Debtor’s request to hold... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Constitution requires that bankruptcy laws be “uniform . . . throughout the United States.” Among such uniformity requirements is this: rulings on core bankruptcy issues must be subject to meaningful appellate review—all the way to the U.S. Supreme Court. Explaining this requirement is the dissent... Continue Reading →
By: Donald L Swanson “The Congress shall have Power . . . To Establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” --Bankruptcies Clause in the U.S. Constitution, Art. I, Sec. 8, Cl. 4. Bankruptcy Exception to Arbitration -- A Constitutional Argument Try this argument on for size: The Constitution's... Continue Reading →
By: Donald L. Swanson “The Congress shall have Power To . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Constitution, Art. 1, Sec. 8 (emphasis added). Bankruptcy law is special, to begin with. There is no other area of law quite like it -- either legally... Continue Reading →
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