On Bankruptcy and Mediation
Apathy? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s the latest opinion on a controversial question: In re Franco’s Paving LLC, Case No. 23-20069, Southern Texas Bankruptcy Court, (decided 10/5/2023; Doc. 74). The Question & Answer Voter apathy is a problem in Subchapter V cases. That apathy is in the form of creditors failing or... Continue Reading →
By: Donald L Swanson Here’s the latest on tort claims against Johnson & Johnson: a $223.8 million judgment against Johnson & Johnson ($37.3 compensatory + $186.5 punitive) in favor of four plaintiffs (i.e., $55.95 million each) is . . . reversed. The reversal opinion is Barden v. Johnson & Johnson, et al., Docket Nos. A-0047-20 thru... Continue Reading →
By: Donald L Swanson In Purdue Pharma, the U.S. Supreme Court grants certiorari on this question: “Whether the Bankruptcy Code authorizes a court to approve, as part of a plan of reorganization under Chapter 11 of the Bankruptcy Code, a release that extinguishes claims held by nondebtors against nondebtor third parties, without the claimants’ consent” (emphasis... Continue Reading →
An old, long and relatively straight road (photo by Marilyn Swanson) By: Donald L Swanson The absolute priority rule [Fn. 1] has been a problem for businesses in bankruptcy—for a very long time! The rule dates back to at least 1899, when the U.S. Supreme Court prevents certain shareholder actions “until the interests of unsecured creditors... Continue Reading →
A different kind of legacy? (Photo by Marilyn Swanson) By: Donald L Swanson “courts agree that . . . evaluating, asserting, pursuing, and defending litigation claims . . . can satisfy Section 1182(1)(A)’s requirement of ‘commercial or business activities.’” In re Fama-Chiarizia, Case No. 21-42341, E.D.N.Y. Bankruptcy Court, issued 9/15/2023, Doc. 238, at 37. One of... Continue Reading →
From Official Comment to Fed.R.Bankr.P. 9035 By: Donald L Swanson This isn’t going to end well. Looks like our bankruptcy system in these United States is about to take a big hit—to the tune of hundreds of millions of dollars (projected to be around $350 million). And those responsible for creating the debacle are going to... Continue Reading →
A liquid plan? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s a Bankruptcy Court opinion addressing a no-discharge claim under § 1141(d)(3) against an individual debtor who proposes a liquidating Subchapter V plan: RGW Construction, Inc. v. Lucido (In re Lucido), Adv. No. 21-4031, Northern California Bankruptcy Court (issued 9/13/2023, Doc. 113). The Issue... Continue Reading →
A starting point? (Photo by Marilyn Swanson) By: Donald L Swanson What rate of interest should a debtor pay under a bankruptcy plan? The Eighth Circuit Court of Appeals addresses this question in Farm Credit Services of America, FLCA v. Topp (In re Topp), Case No. 22-2577 (8th Cir., decided August 2, 2023; Petition for rehearing... Continue Reading →
No super-power here (Photo by Marilyn Swanson) By: Donald L Swanson Question Once a Subchapter V debtor is removed from possession under § 1185(a), what happens next? The answer to this question seems to have evolved over the few years of Subchapter V’s existence: from a low-power position for debtor, early-on; to a high-power position for... Continue Reading →
Enigmatic origins? (Photo by Marilyn Swanson) By: Donald L Swanson The equitable mootness doctrine is before the U.S. Supreme Court on a Petition for writ of certiorari. The case is U.S. Bank National Association v. Windstream Holdings, Inc.[Fn. 1] All who’ve seen an effort to abuse equitable mootness, from a creditor’s view, will appreciate the following... Continue Reading →
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