On Bankruptcy and Mediation
By: Donald L. Swanson The California Law Revision Commission is studying mediation confidentiality in the legal malpractice context. Its Memorandum dated May 27, 2016, discusses ways to address confidentiality concerns. Minnesota's "Hip Pocket" Example An unusual “type of approach” it identifies is Minnesota’s “hip pocket” service rule. Under this rule, the statute of limitations is... Continue Reading →
By: Donald L Swanson The Bankruptcy Court opinion is In re Brizinova and Soshkin, 565 B.R. 488 (Bkrtcy. E.D.N.Y. 2017). The Trustee sues the debtors to recover assets for the bankruptcy estate. The Debtors file a motion to dismiss, in which their attorney, (i) makes statements the Trustee finds objectionable, and (ii) references information from a... 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 I recently stumbled upon a fascinating report of a study on issues and trends called “Successful Mediation in International Relations.” This study looks at 79 international disputes (of which 44 are mediated) occurring during a 45 year period, between 1945 and 1989. The study makes multiple findings about these mediation efforts.... 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 →
NonconformityBy Donald L. Swanson There is "a kind of 'hostility to arbitration' that led Congress to enact" the Federal Arbitration Act. Kindred Nursing Centers v. Clark, U.S. Supreme Court Case No. 16-32 (decided May 15, 2017). Alternative dispute resolution processes ("ADR") include arbitration and mediation. Arbitration Congress passed the Federal Arbitration Act ("Arbitration Act") to... Continue Reading →
By: Donald L. Swanson Arch Coal, Inc., files bankruptcy on January 11, 2016. By the month of May 2016, the debtor and its creditors are in contentious negotiations over terms of a Chapter 11 plan. At one point, the parties think they have an agreement in principal, but things fall apart when putting settlement details... Continue Reading →
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