History of Bankruptcy: From the Torah, the Talmud and the Mishnah

By: Donald L. Swanson For starters, see my "Disclaimer" below. “The Torah is the Hebrew Bible,” consisting of the books of Genesis, Exodus, Leviticus, Numbers, Joshua, Psalms, Book of Ruth, etc.; and the Talmud “is the compilation of the historical rabbis ‘discussing’ or ‘debating’ what the Torah means.” [Fn. 1] The Mishnah is “an edited record”... Continue Reading →

Unbridled Credit-Bidding vs. Maximizing Value: U.S. Supreme Court and First Circuit Cases

By: Donald L. Swanson Imagine you’re at an auction and multiple parties are bidding on an item.  At a certain price, all bidders drop out except two.  These two keep bidding, and the price goes up. One bidder finally prevails—at a very high price. This happens.  It’s called competitive bidding at a fair auction.  This... Continue Reading →

The Problem of Pass-Through Tax Liability from Liquidation of a Family Business — A Chapter 11 Solution?

By: Donald L. Swanson Hypothetical: A family business has been successful for many years. But obsolescence of its products and services is taking a toll: the business is now insolvent, its assets are fully encumbered, no one is interested in buying the business as a going concern, and family shareholders have guaranteed most of its debts.... Continue Reading →

The Constitution’s “Bankruptcies” Clause: Assumed but Not Discussed or Cited in U.S. Supreme Court Bankruptcy Opinions

By: Donald L Swanson “It’s assumed.” That's the answer I heard, recently, to this question: “Why does the U.S. Supreme Court fail to discuss, or even cite, the ‘Bankruptcies’ clause of the U.S. Constitution when it decides constitutional questions of bankruptcy law?” [Fn. 1] Say what?!  Let’s get this straight: The U.S. Constitution has a clause empowering... Continue Reading →

Contract Rejection Damages as Administrative Claims in Bankruptcy

By: Donald L. Swanson “What is at issue for these parties, practically speaking, is whether to classify as prepetition or post-petition liability any damages caused by Debtor’s failure to honor its executory obligations.” --U.S. First Circuit Court of Appeals in Mission Product Holdings v. Tempnology, LLC., Case No. 16-9016 (1/12/2018), at 14. Current Posture Mission v.... Continue Reading →

Dewsnup Needs to be Overturned: It’s Out of Touch and Based on a Bizarre Foundation (But U.S. Supreme Court Passes)

By: Donald L. Swanson The U.S. Supreme Court’s Dewsnup v. Timm opinion (502 U.S. 410 (1992)) was wrongly decided and needs to be overturned. Unfortunately, that's not going to happen any time soon, since the U.S. Supreme Court denied certiorari on Tuesday (February 19, 2019) in the case of Ritter v. Brady, Supreme Court Case No. 18-747.... Continue Reading →

Resisting Fraudulent Transfer Temptations — Family Businesses

By: Donald L. Swanson About a decade ago, I have an appointment scheduled in my office with two brothers. I’m excited, because they are the principals of a major family business in our region. I’m aware that their business is facing economic headwinds and am assuming they want my counsel on managing their business difficulties. Our... Continue Reading →

Enactment of the Bankruptcy Code in 1978: A Short History

By: Donald L. Swanson Congress must be allowed “to fashion a modern bankruptcy system which places the basic rudiments of the bankruptcy process in the hands of an expert equitable tribunal.” --Justice Blackmun, dissenting in Granfinanciera v. Nordberg, 492 U.S. 33 (1989). Forty years ago -- back in 1978 -- Congress enacted the current Bankruptcy Code.... Continue Reading →

A Strategy to Beat the Absolute Priority Rule in Family Business Bankruptcies

By: Donald L. Swanson The absolute priority rule is the greatest legal impediment to reorganizing a family business under Chapter 11—no other legal impediment is even close. In what follows, I offer a strategy for beating that rule. The Absolute Priority Rule The absolute priority rule is a Chapter 11 plan confirmation requirement. It says:... Continue Reading →

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