In bankruptcy as in federal jurisprudence generally, to characterize something with the near-epithet of “federal common law” virtually dooms it to rejection. But, since “common law” is “[t]he body of law derived from judicial...more
It seems to be a common misunderstanding, even among lawyers who are not bankruptcy lawyers, that litigation in federal bankruptcy court consists largely or even exclusively of disputes about the avoidance of transactions as...more
I don’t know if Congress foresaw, when it enacted new Subchapter V of Chapter 11 of the Code in the Small Business Reorganization Act of 2019 (“SBRA”), that debtors in pending cases would seek to convert or redesignate their...more
Our February 26 post reported on the first case dealing with the question whether a debtor in a pending Chapter 11 case may redesignate it as a case under Subchapter V, the new subchapter of Chapter 11 adopted by the Small...more
Our February 26 post entitled “SBRA Springs to Life” reported on the first case known to me that dealt with the issue whether a debtor in a pending Chapter 11 case should be permitted to amend its petition to designate it as...more
We reported on the adoption of the Small Business Reorganization Act of 2019 (“SBRA”), with its 180-day runway to effectiveness, at the time of its adoption last year. The wait is over, and SBRA is springing to...more
Whether because of, or in spite of, the proliferating case law it is hard to say, but the issues in, underlying and surrounding third-party releases in Chapter 11 plans just continue to arise with incessant regularity, albeit...more
In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“2005 Act”), Congress amended the Bankruptcy Code and Title 28 of the U.S. Code to provide special rules and procedures for “small business debtors.” The...more
A bankruptcy trustee exercising her or his avoidance powers under Chapter 5 of the Bankruptcy Code may seek to recover the avoidably transferred property (or its value) from “the initial transferee,” “the entity for whose...more
Our May 22 post reported on the Supreme Court’s May 20 decision in Mission Product Holdings, Inc. v. Tempnology, LLC,[1] an 8-1 decision holding that the rejection of a trademark license in which the debtor is the licensor...more
7/10/2019
/ Bankruptcy Appellate Panel (BAP) ,
Bankruptcy Code ,
Breach of Contract ,
Commercial Bankruptcy ,
Debtors ,
Exclusions ,
Executory Contracts ,
IP License ,
Mission Product Holdings Inc v Tempnology LLC ,
Rescission ,
Reversal ,
SCOTUS ,
Section 365 ,
Split of Authority ,
Trademark Licenses ,
Trademarks ,
Trustees
Our January 22, May 23, June 28, July 13, August 3, September 11 and October 29, 2018 and January 11, 2019 posts discussed the First Circuit’s January 12, 2018 decision in Mission Product Holdings, Inc. v. Tempnology, LLC....more
5/23/2019
/ Bankruptcy Appellate Panel (BAP) ,
Bankruptcy Code ,
Breach of Contract ,
Commercial Bankruptcy ,
Debtors ,
Exclusions ,
Executory Contracts ,
IP License ,
Mission Product Holdings Inc v Tempnology LLC ,
Rescission ,
Reversal ,
SCOTUS ,
Section 365 ,
Split of Authority ,
Trademark Licenses ,
Trademarks ,
Trustees
It always amazes me when, after more than a half-century of Uniform Commercial Code (“UCC”) jurisprudence, an issue one thinks would arise quite commonly appears never to have been decided in a reported case. Such an issue...more
Can another vain attempt to mitigate a $1.5 billion mistake provide the occasion for a thorough review of the doctrine of earmarking? It did for Southern District Bankruptcy Judge Martin Glenn in the long tail on the General...more
Although it may be difficult to define precisely what an “executory contract” is (with the Bankruptcy Code providing no definition), I think most bankruptcy lawyers feel how the late Supreme Court Justice Potter Stewart...more
11/20/2018
/ Appeals ,
Bankrtupcy Confirmation Plans ,
Bankruptcy Code ,
Chapter 7 ,
Commercial Bankruptcy ,
Debtors ,
Executory Contracts ,
IP License ,
License Agreements ,
Time-Barred Claims ,
Trustees
Our June 28 post discussed the petition for certiorari in the U.S. Supreme Court seeking review of the First Circuit’s January 12 decision in Mission Product Holdings, Inc. v. Tempnology, LLC. We noted that the respondent’s...more
7/13/2018
/ Amicus Briefs ,
Bankruptcy Code ,
Chapter 7 ,
Commercial Bankruptcy ,
Debtors ,
Executory Contracts ,
INTA ,
Intellectual Property Litigation ,
Intellectual Property Protection ,
IP License ,
Licensees ,
Petition for Writ of Certiorari ,
Section 365 ,
Split of Authority ,
Trademark Licenses ,
Trademarks
Our February 22 post (with updates on March 19, April 17 and April 25) reported on a bankruptcy court decision dismissing a voluntary corporate Chapter 11 petition that had not been approved by a preferred stockholder of the...more
Our January 22 post discussed “a long-running issue concerning the treatment of trademark licenses in bankruptcy” and its resolution in the January 12 decision of the First Circuit in Mission Product Holdings, Inc. v....more
Our February 22 post reported that the Franchise Services of North America, Inc. decision of Bankruptcy Judge Edward Ellington of the Southern District of Mississippi dismissing a Chapter 11 petition because a shareholder had...more
4/26/2018
/ Appeals ,
Appellate Briefs ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Debtors ,
Filing Requirements ,
Oral Argument ,
Policies and Procedures ,
Shareholders
Our February 22 post reported that the Franchise Services of North America, Inc. decision of Bankruptcy Judge Edward Ellington of the Southern District of Mississippi dismissing a Chapter 11 petition because a shareholder had...more
4/18/2018
/ Appeals ,
Appellate Briefs ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Consent ,
Creditors ,
Debtors ,
Fiduciary Duty ,
Shareholders
Substantive consolidation is the ultimate disregard of the corporate separateness of a group of related debtors--it is “the effective merger of two or more legally distinct (albeit affiliated) entities into a single debtor...more
Our February 22 post reported that the Franchise Services of North America, Inc. decision of Bankruptcy Judge Edward Ellington of the Southern District of Mississippi dismissing a Chapter 11 petition because a holder of...more
3/20/2018
/ Appeals ,
Appellate Briefs ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Corporate Governance ,
Creditors ,
Debtors ,
Fiduciary Duty ,
Jurisdiction ,
Veto Rights
Our post last year concerning “[t]he long-running litigation spawned by the leveraged buyout of Tribune Company . . . and the subsequent bankruptcy case” described a case--FTI v. Merit--that was then pending in the Supreme...more
2/28/2018
/ Appeals ,
Avoidable Transfer ,
Bankruptcy Code ,
Brokers ,
Buyouts ,
Debtors ,
Financial Institutions ,
Preemption ,
Safe Harbors ,
Section 546(e) ,
Trustees
Back in the day--say, the last two decades of the twentieth century--we bankruptcy lawyers took it largely on faith that the right structural and contractual provisions purporting to confer bankruptcy-remoteness were...more
2/23/2018
/ Appeals ,
Bankruptcy Code ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Creditors ,
Debtors ,
Limited Liability Company (LLC) ,
Motion to Dismiss ,
Special Purpose Entities ,
Special Purpose Vehicles
When the fallout from failed intellectual-property litigation collides with bankruptcy, the complexities may be dizzying enough, but when the emerging practices and imperatives of litigation financing are imposed on those...more
12/8/2017
/ Attorney Malpractice ,
Attorney's Fees ,
Chapter 11 ,
Chapter 7 ,
Collateral ,
Creditors ,
Debtors ,
Intellectual Property Litigation ,
Litigation Funding ,
Secured Debt ,
Trustees
It is a unique characteristic of debt restructuring under Chapter 11 of the Bankruptcy Code that a majority of a class of creditors can accept a modification of the terms of the debts owed to the class members, as provided in...more