On Bankruptcy and Mediation
Blocked from moving forward (photo by Marilyn Swanson) By Donald L. Swanson You’d think it’s immoral or something—or at least it’s in violation of some constitutional principle of great and foundational importance . . . like due process or First Amendment or separation of powers. I’m talking about tort claimants being denied payments for their injuries,... Continue Reading →
By: Donald L Swanson Four U.S. Supreme Court justices (Kagan, Kavanaugh, Roberts and Sotomayor) provide the following summary of their Purdue Pharma dissent in the Purdue Pharma case. Wrong & Devastating Today’s five-justice majority opinion is wrong on the law and devastating for more than 100,000 opioid victims and their families: the majority opinion rewrites the... Continue Reading →
Nonconformity (photo by Marilyn Swanson) By: Donald L Swanson Provisions of the Bankruptcy Code and the Federal Arbitration Act can collide. How those collisions are to be sorted out remains an open question. The U.S. Supreme Court recently issued an opinion on remedies for a violation of the U.S. Constitution’s uniformity requirement for bankruptcy laws[Fn. 1];... Continue Reading →
Waving easily (photo by Marilyn Swanson) By: Donald L Swanson Contracts can provide for the arbitration of disputes. And those arbitration rights are enforced by the Federal Arbitration Act. But contractual arbitration rights can be waived. And the question is this: Is it easy . . . or hard . . . to waive those rights?... Continue Reading →
Uttering an expletive? (Photo by Marilyn Swanson) By: Donald L Swanson The phrase “Texas Two-Step,” as used in bankruptcy, is a legal expletive. Regardless of what the details of a Texas Two-Step might be, the phrase has become synonymous with: abusive behavior; bad faith conduct; a means for swindling creditors; the antithesis of “doing what’s right”;... Continue Reading →
By: Donald L Swanson Here’s a dilemma: Should bankruptcy be available as a tool for resolving mass tort cases of all types (like it already is in asbestos contexts)? Here’s an illustration of the dilemma: many tort claimants in the Johnson & Johnson case DO NOT want bankruptcy involved; but many tort claimants in the Purdue... Continue Reading →
A narrow view (photo by Marilyn Swanson) By: Donald L Swanson The U.S. Supreme Court’s opinion is Truck Insurance Exchange v. Kaiser Gypsum Co., Inc., Case No. 22-1079, Decided June 6, 2024. Opinion’s Q & A The Truck Insurance question is this: Whether an insurer with financial responsibility for a bankruptcy claim is a “party in... Continue Reading →
By: Donald L Swanson Before the U.S. Supreme Court on a Petition for writ of certiorari is United States v. Miller, Case No. 23-824 (“Distributed for Conference of 6/13/2024”). In United States v. Miller, a Chapter 7 Trustee obtains a fraudulent transfer judgment under 11 U.S.C. § 544(b) against the Internal Revenue Service to recover two... Continue Reading →
A dilemma? (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcies with large tort claims are common: some involve a limited number of claimants (e.g., a drunk driver hits a bus or a restaurant serves bad food one evening); and others have large numbers of claimants, some of whom won’t even be known for at least... Continue Reading →
A rough day (photo by Marilyn Swanson) By: Donald L Swanson A mass-tort asbestos case before the U.S. Supreme Court is Truck Insurance Exchange v. Kaiser Gypsum Company, Inc., Case No 22-1079. Here is a link to the transcript of oral arguments in that case, from March 19, 2024. In Truck Insurance, the question is whether... Continue Reading →
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