Tag: Arbitration

“Indicative Rulings”: Settling Bankruptcy Disputes While On Appeal — Rule 8008 (In re Millenkamp) (Part 3)

Indicating? (Photo by Marilyn Swanson) By: Donald L Swanson Here is an opinion illustrating how the “indicative rulings” process in Fed.R.Bankr.P. 8008 can work: Millenkamp Cattle, Inc. v. East Valley Development, LLC (In re Millenkamp Cattle, Inc.), Adv. No. 25-8003, Idaho Bankruptcy Court (decided August 19, 2025). Facts Before filing bankruptcy, Debtor enters into two contracts... Continue Reading →

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Arbitrating An Automatic Stay Dispute—And U.S. Constitution’s Bankruptcy Uniformity (Goldman Sachs v. Brown)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson A long-standing tension exists between provisions of the Bankruptcy Code and provisions of the Federal Arbitration Act (9 U.S.C. § 1 et seq., “FAA”). The question in such tension is this: must disputes over essential bankruptcy functions be addressed in arbitration, instead of bankruptcy court, under pre-petition... Continue Reading →

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Arbitration Clause In A Discharged Contract Is Unenforceable—Unless Weaponized (Rogne v. Digital)

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 →

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Bankruptcy Overrides Arbitration In A Claim Objection Proceeding (In re Bridger)

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 →

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ABCs (Assignments for Benefit of Creditors) are an ADR (Alternative Dispute Resolution) Process

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 →

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Bankruptcy Code v. Federal Arbitration Act . . . & The Constitution’s Uniformity Requirement

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 →

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Arbitration Rights Are Now Easily Waived?! (Supreme Court’s Thomas v. Pawn American)

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 →

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Conflicting Statutes: ERISA Arbitration & Bankruptcy Claims Allowance (In re Yellow Corp.)

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 →

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Arbitration At U.S. Supreme Court . . . Again, But Not On Bankruptcy—Whew! (Smith V. Spizzirri)

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 →

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Denying Arbitration Of Legal Malpractice Case In Bankruptcy (Murray Energy Holdings)

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 →

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