On Bankruptcy and Mediation
By: Donald L. Swanson There’s a lawsuit now in progress in a Florida Federal Court over a local pub. The Pub Dispute Plaintiff claims to be "a franchisor” of “establishments” that sell “imported and domestic beers” and other products used in “a distinctive pub environment.” Plaintiff also claims to have “methods and procedures—a system—” that... Continue Reading →
By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases. The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →
By: Donald L. Swanson “Mandatory mediation” is a self-explanatory term. It means this: –Disputing parties are required by court order or rule of law to participate in a mediation session. Mandatory mediation is a common tool for resolving disputes. However, a reticence still exists, in much of the bankruptcy world, toward mandatory mediation. The sources... Continue Reading →
By: Donald L Swanson “[T]he parties should be prepared to engage in mediation before the Court fixes any evidentiary hearing.” Bankruptcy Judge Kevin J. Carey, In re AWI Delaware, Inc., Case No. 14-12092 (Bankry. Del., opinion dated 6/28/2017). Did you ever see a play in a sporting event that’s both imaginative and effective? And your reaction... Continue Reading →
By: Donald L. Swanson A typical lawsuit mediation involves a passive mediator dealing with litigation attorneys: --Passive mediators must wait to be engaged and then assist with disputes the parties identify; and --Litigation attorneys are fighting the case in court—they are active belligerents. So . . . the practical effect, in a typical lawsuit mediation, is... Continue Reading →
By: Donald L. Swanson When . . . an appeal is from the district court’s affirmance of a bankruptcy court order, a remand to the bankruptcy court for approval of settlement requires coordination between three courts. --Cox v. Nostaw, Inc. (In re Central Illinois Energy Coop.), Case No. 16-1389 (7th Cir., Feb. 8, 2017). Background... Continue Reading →
By Donald L. Swanson The basic rule is this: the confidentiality of information held by a mediator is nearly-sacred. The case is In re Anonymous, 283 F.3d 627 (4th Cir. 2002). The question is whether a mediator may divulge, or be compelled to divulge, information from a mediation session. An underlying lawsuit is settled... Continue Reading →
By Donald L. Swanson “We, too, sympathize with the plight of the American farmer. Nevertheless, the solution proposed by the Ahlers majority is contrary to the Bankruptcy Code and a long line of case law.” -- U.S. Supreme Court in Norwest Bank Worthingtonb v. Ahlers, 485 U.S. 197, 209 (1988). The Problem The 1980s are... Continue Reading →
By: Donald L. Swanson Advertised Prices: “Haircuts $10 (we add a 3% surcharge if you pay by credit card)” “Sundaes $10 (with a $0.30 surcharge for credit card users)” State Law Violation The State of New York says these advertised prices violate New York General Business Law § 518, which provides: “No seller in any... Continue Reading →
By Donald L. Swanson On May 21, 2017, the Financial Oversight and Management Board for Puerto Rico files its “Petition” initiating a proceeding under the Puerto Rico Oversight, Management, and Economic Stability Act. This proceeding is described as a pseudo-bankruptcy and is pending in the U.S. Bankruptcy Court for the District of Puerto Rico (Case... Continue Reading →
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