On Bankruptcy and Mediation
Map of Puerto Rico By: Donald L Swanson Mediation is playing a central role in Puerto Rico’s bankruptcy. But mediating parties could not resolve an Appointments Clause dispute under the U.S. Constitution. So, the U.S. Supreme Court recently resolved it for them. And the Supreme Court's decision is a welcome affirmation of the legitimacy of actions... Continue Reading →
By: Donald L Swanson The phrase, “honest but unfortunate debtor," has been a part of bankruptcy laws for centuries. A bankruptcy treatise published in 1801, for example, says that bankruptcy laws in England and the U.S. "are meant to protect an honest but unfortunate trader." [Fn. 1] No one knows when or how the phrase began.... Continue Reading →
There is “no federal general common law.”
By: Donald L Swanson “An erroneous identification of a final order as interlocutory may cause a party to miss the appellate deadline.” --U.S. Supreme Court in Rytzen Group, Inc. v Jackson Masonry, LLC (decided 1/14/2020) Rarely has a Supreme Court bankruptcy ruling had a more-expansive effect that its most recent pronouncement. The quotation above shows why—because... Continue Reading →
By Donald L. Swanson “The parties here do not contend that either the debtor or petitioner in this case qualified as a “financial institution” by virtue of its status as a “customer” under §101(22)(A). . . . We therefore do not address what impact, if any, §101(22)(A) would have in the application of the §546(e) safe... Continue Reading →
By: Donald L Swanson The Office of the US Trustee administers the bankruptcy system in these United States. To fund its efforts, the US Trustee receives quarterly fees from Chapter 11 debtors, which fees are a major (and often a problematic) expense for debtor’s to pay. Back in October 2017, Congress increased the amounts of such... Continue Reading →
By: Donald L Swanson What should the U.S. Supreme Court Justices do when, (i) they grant certiorari to resolve a circuit split on whether a rule of law is valid, but (ii) no party to the appeal argues in favor of that rule? That’s exactly the circumstances in Rodriguez v. FDIC, Supreme Court Case No. 18-1269... Continue Reading →
It's as if they don't want to mention the Bankruptcies Clause because, in doing so, they'd have to give it weight and authority.
By: Donald L. Swanson “every creditor in the country should be lining up behind our side of the podium.” --Respondent’s counsel in Ritzen v. Jackson oral arguments at U.S. Supreme Court on 11/13/2019. Here’s a link to the transcript. On October 11, 2019, the Office of Solicitor General files an amicus brief in Ritzen v. Jackson... Continue Reading →
By: Donald L Swanson The case before the U.S. Supreme Court is Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (Case No. 18-1334). Oral arguments occurred on October 15, 2019. Here is a link to the official transcript. An Oddly Important Case This is an oddly important case: it’s resolution turns on... Continue Reading →
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