The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for...more
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for...more
Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Third Circuit...more
9/21/2021
/ 363 Sales ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Contract Terms ,
Creditors ,
Debtors ,
Debtors-in-Possession ,
Executory Contracts ,
Film Industry ,
Materiality ,
Profits ,
Section 365 ,
Work Made For Hire Doctrine
Section 365(h) of the Bankruptcy Code provides special protection for tenants if a trustee or chapter 11 debtor-in-possession ("DIP") rejects an unexpired lease under which the debtor was the lessor by giving the tenant the...more
On June 22, 2020, the Federal Energy Regulatory Commission ("FERC") issued an order concluding that FERC and the U.S. bankruptcy courts have concurrent jurisdiction to review and address the disposition of natural gas...more
10/20/2020
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Exclusive Jurisdiction ,
Executory Contracts ,
FERC ,
Filed-Rate Doctrine ,
PG&E ,
Power Purchase Agreements ,
Section 365
In a leading precedent handed down in 2018—Sabine Oil & Gas Corp. v. Nordheim Eagle Ford Gathering, LLC (In re Sabine Oil & Gas Corp.), 734 Fed. Appx. 64 (2d Cir. May 25, 2018)—the U.S. Court of Appeals for the Second Circuit...more
3/4/2020
/ Appeals ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Contract Terms ,
Covenants that Run With the Land ,
Debtors-in-Possession ,
Energy Sector ,
Executory Contracts ,
Gathering Agreements ,
Midstream Contracts ,
Mineral Exploration ,
Oil & Gas ,
Privity of Contract ,
Sabine Oil and Gas ,
Section 365
Except for disastrous fires that sparked the largest bankruptcy filing of the year, liabilities arising from the opioid crisis, the fallout from price-fixing, and corporate restructuring shenanigans, economic, market, and...more
2/26/2020
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 15 ,
Chapter 9 ,
Commercial Bankruptcy ,
Corporate Counsel ,
Corporate Restructuring ,
Debtor-Creditor ,
FERC ,
Foreign Bankruptcies ,
Fraudulent Conveyance ,
Mission Product Holdings Inc v Tempnology LLC ,
Non-Consensual Rights ,
Oil & Gas ,
PG&E ,
Publicly-Traded Companies ,
Section 363 ,
Section 365 ,
Third-Party Release Agrements
The recent chapter 11 filings by PG&E Corp. and its Pacific Gas & Electric Co. utility subsidiary (collectively, "PG&E") and FirstEnergy Solutions Corp. have reignited the debate over the power of a U.S. bankruptcy court to...more
8/21/2019
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Debtors-in-Possession ,
Energy Contracts ,
Federal Power Act ,
FERC ,
Filed-Rate Doctrine ,
Mission Product Holdings Inc v Tempnology LLC ,
PG&E ,
Popular ,
Power Purchase Agreements ,
Section 365
In Mission Product Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 652, 2019 WL 2166392 (U.S. May 20, 2019), the U.S. Supreme Court ruled that the rejection in bankruptcy of a trademark license agreement, which constitutes a...more
8/20/2019
/ Bankruptcy Appellate Panel (BAP) ,
Bankruptcy Code ,
Breach of Contract ,
Chapter 11 ,
Commercial Bankruptcy ,
Debtors ,
Debtors-in-Possession ,
Exclusions ,
Executory Contracts ,
IP License ,
Mission Product Holdings Inc v Tempnology LLC ,
Rescission ,
Reversal ,
SCOTUS ,
Section 365 ,
Split of Authority ,
Trademark Licenses ,
Trademarks ,
Trustees
In a highly anticipated decision—Sabine Oil & Gas Corp. v. Nordheim Eagle Ford Gathering, LLC (In re Sabine Oil & Gas Corp.), 734 Fed. Appx. 64, 2018 WL 2386902 (2d Cir. May 25, 2018)—the U.S. Court of Appeals for the Second...more
In In re SIMA Int'l, Inc., 2018 WL 2293705 (Bankr. D. Conn. May 17, 2018), the U.S. Bankruptcy Court for the District of Connecticut ruled that a chapter 7 trustee's rejection of an intellectual property license agreement did...more
8/14/2018
/ Bankruptcy Code ,
Chapter 7 ,
Commercial Bankruptcy ,
Debtors ,
Debtors-in-Possession ,
Intellectual Property Litigation ,
Intellectual Property Protection ,
IP License ,
Petition for Writ of Certiorari ,
Section 365 ,
Split of Authority ,
Trademark Licenses ,
Trademarks
In Mission Product Holdings, Inc. v. Tempnology, LLC (In re Tempnology, LLC), 879 F.3d 389 (1st Cir. 2018), the U.S. Court of Appeals for the First Circuit ruled that the rejection of a trademark license in bankruptcy means...more
The ability of a trustee or chapter 11 debtor-in-possession ("DIP") to sell bankruptcy estate assets "free and clear" of competing interests in the property has long been recognized as one of the most important advantages of...more
10/4/2017
/ 363 Sales ,
Appeals ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Commercial Leases ,
Commercial Tenants ,
Debt Restructuring ,
Debtors-in-Possession ,
Free and Clear Transactions ,
Landlords ,
Mortgages ,
Resorts & Restaurants ,
Sale of Assets ,
Section 365 ,
Split of Authority ,
Tenants ,
Trustees
Among the required elements of a claim to avoid a preferential transfer under section 547(b) of the Bankruptcy Code is that, if the creditor-transferee were permitted to retain a pre-bankruptcy payment, it would end up being...more
5/31/2017
/ Bankruptcy Code ,
Chapter 11 ,
Chapter 7 ,
Creditors ,
Debtors ,
Executory Contracts ,
Managed Custody Accounts (MCAs) ,
Preferences ,
Preferential Transfers ,
Section 365 ,
Trustees