On Bankruptcy and Mediation
Judicial estoppel? (Photo by Marilyn Swanson) By: Donald L Swanson Can a tortfeasor get off scott-free, under the doctrine of judicial estoppel, because plaintiff fails to schedule the tort claim in plaintiff’s bankruptcy? That’s the question before the U.S. Supreme Court in Kethley v. Buddy Ayers Construction, Inc., Case No. 25-6 (decided June 11, 2026). In... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson Stern v. Marshall, 564 U.S. 462 (2011), is a five-justice majority opinion with a four-justice dissent. And the dissent is strong. Too bad it failed to prevail, because: the majority opinion created havoc within the entire bankruptcy system; and it did so by creating uncertainty, confusion and... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson The Bankruptcy Code's effective date was October 1, 1979. Northern Pipeline Construction Co. filed Chapter 11 bankruptcy in January of 1980, under the new Bankruptcy Code. In its bankruptcy, Northern Pipeline sued Marathon Pipe Line Co. in bankruptcy court, asserting claims under state law. The question of... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson The U.S. Supreme Court has never liked like the Bankruptcy Code and has worked diligently, over the decades, to limit the authority of bankruptcy courts and bankruptcy judges. Two examples are U.S. Supreme Court opinions that have anniversaries this month—in June of 2026: 44 years ago (on... Continue Reading →
Northern Pipeline & Stern Opinions By: Donald L Swanson Here is a common statement of bankruptcy court jurisdiction: “The Court has constitutional authority to determine this matter because it,” “is purely a matter of bankruptcy law”; and “does not require the resolution of any matter similar to ‘the stuff of the traditional actions at common law... Continue Reading →
Northern Pipeline & Stern Opinions The Bankruptcy Code goes into effect on October 1, 1979. I take the Nebraska Bar Exam in July of 1980 and am sworn-in to practice law in Nebraska in September of that year. Two years later (forty four years ago), the U.S. Supreme Court issues its Northern Pipeline Construction Co.... Continue Reading →
"Look through" jurisdiction? (Photo by Marilyn Swanson) By: Donald L Swanson Hypothetical: Plaintiff sues Defendant in Federal District Court on a federal question claim; the Court grants Defendant’s motion to refer the case to arbitration and to stay the court case until arbitration concludes; the arbitrators rule for Defendant and award nothing ($0.00) to Plaintiff; ... Continue Reading →
Honest and unfortunate (photo by Marilyn Swanson) By: Donald L Swanson Nondischargeability for “willful and malicious injury by the debtor to another entity or to the property of another entity,” under § 523(a)(6), cannot be based on a principal-agent theory of vicarious liability. That’s the holding of M.O. v. Rosario (In re Rosario), Case No. CC-24-1163... Continue Reading →
Oral Arguments Transcript -- Title Page By: Donald L Swanson Will the U.S. Supreme Court consider the interests of Debtor’s creditors and bankruptcy estate in deciding whether Debtor’s pursuit of a lawsuit is barred by judicial estoppel? That’s an issue in Keathley v. Buddy Ayers Construction, Inc., Case No. 25-6 at the U.S. Supreme Court, in... Continue Reading →
Precedent? (Photo by Marilyn Swanson) By: Donald L Swanson The U.S. Supreme Court doesn't issue a lot of bankruptcy opinions. But it does use its bankruptcy opinions as precedents in non-bankruptcy opinions. One such precedent example is E.M.D. Sales, Inc. v. Carrera, 144 S. Ct. 483 (2025), which holds: “Fair Labor Standards Act of 1938 requires... Continue Reading →
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