On Bankruptcy and Mediation
An old, long and relatively straight road (photo by Marilyn Swanson) By: Donald L Swanson The absolute priority rule [Fn. 1] has been a problem for businesses in bankruptcy—for a very long time! The rule dates back to at least 1899, when the U.S. Supreme Court prevents certain shareholder actions “until the interests of unsecured creditors... Continue Reading →
From Official Comment to Fed.R.Bankr.P. 9035 By: Donald L Swanson This isn’t going to end well. Looks like our bankruptcy system in these United States is about to take a big hit—to the tune of hundreds of millions of dollars (projected to be around $350 million). And those responsible for creating the debacle are going to... Continue Reading →
Enigmatic origins? (Photo by Marilyn Swanson) By: Donald L Swanson The equitable mootness doctrine is before the U.S. Supreme Court on a Petition for writ of certiorari. The case is U.S. Bank National Association v. Windstream Holdings, Inc.[Fn. 1] All who’ve seen an effort to abuse equitable mootness, from a creditor’s view, will appreciate the following... Continue Reading →
Rare and hard to get? (Photo by Marilyn Swanson) By: Donald L Swanson Here’s my take on third-party releases in a bankruptcy plan [not that anyone asked]: third-party releases should be rare and hard-to-get; but in exceptional circumstances (i.e., when a third-party release is needed to get lots of money to claimants quickly under a plan,... Continue Reading →
Long-arm jurisdiction? (Photo by Marilyn Swanson) By: Donald L Swanson Mallory v. Norfolk Southern Railway Co.[fn. 1] has got to be one of the most unusual vote-count opinions at the U.S. Supreme Court. Get this: Justice Gorsuch writes a plurality opinion, vacating the judgment of the Supreme Court of Pennsylvania and remanding the case, (i) based... Continue Reading →
Dissenters? (Photo by Marilyn Swanson) By: Donald L Swanson Dissenting opinions are always interesting. Sometimes, they are even the most interesting part of the entire case. Two recent dissents, in opinions of the U.S. Supreme Court, are decided three days apart: on June 23 & 26 of 2023, respectively. The first opinion has a four-Justices dissent... Continue Reading →
Eighth Amendment to U.S. Constitution By: Donald L Swanson “we need not decide whether she has also alleged an excessive fine under the Eighth Amendment.” --From U.S. Supreme Court’s unanimous opinion, Tyler v. Hennepin County, Minnesota, Case No. 22-166, at 14 (decided May 25, 2023). By now, everyone knows that the U.S. Supreme Court, in Tyler... Continue Reading →
Tribal sovereignty (photo by Marilyn Swanson) By: Donald L Swanson Contrasting opinions from any court, issued a month apart, are always instructive. And we have a new such thing—from the U.S. Supreme Court, no less, and from May and June of this year. The contrast is on this subject: whether sovereign immunities of Puerto Rico and... Continue Reading →
Narrow (Photo by Marilyn Swanson) By: Donald L Swanson When a federal court approves a [bankruptcy] plan allowing someone to put its hands into another person’s pockets, the person with the pockets is entitled to be fully heard and to have legitimate objections addressed.[Fn. 1] Pop Quiz Question: Does Insurer, in the following facts, have standing... Continue Reading →
Tribal sovereignty (photo by Marilyn Swanson) By: Donald L Swanson Oral arguments occur on April 24, 2023, before the U.S. Supreme Court in Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, Case No 22-227. Here is a link to the oral arguments transcript. What follows is an attempt to, (i) summarize the facts... Continue Reading →
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