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
State governments can be creditors of individuals, businesses and institutions that are debtors in bankruptcy in a variety of ways, most notably as tax and fine collectors but also as lenders. They can also be debtors of...more
We have noodled on the impact that the Supreme Court’s decision in Merit Management Group, LP v. FTI Consulting, Inc., which held that the safe harbor provided in Section 546(e) of the Bankruptcy Code does not apply when the...more
1/31/2020
/ Avoidance ,
Bankruptcy Code ,
Commercial Bankruptcy ,
Creditors ,
Dismissals ,
Financial Institutions ,
Fraudulent Transfers ,
Intermediaries ,
Leveraged Buyout ,
Merit Management Group v FTI Consulting ,
Safe Harbors ,
Section 546(e) ,
Shareholders
Anglo-American legislators and judges have been dealing with the treatment of debtors’ transactions that adversely affect their creditors at least since the Sixteenth Century. In 1571, Parliament enacted the famous statute...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
Our January 22, May 23, June 28, July 13, August 3, September 11 and October 29, 2018 posts discussed the First Circuit’s January 12, 2018 decision in Mission Product Holdings, Inc. v. Tempnology, LLC and the pending appeal...more
1/14/2019
/ Bankruptcy Code ,
Commercial Bankruptcy ,
Fifth Amendment ,
Intellectual Property Litigation ,
Intellectual Property Protection ,
Licensees ,
Omissions ,
Oral Argument ,
Section 365 ,
Trademark Licenses ,
Trademarks
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
In hindsight, it seems inevitable that constitutional and other jurisdictional problems would arise when Congress, in enacting the Bankruptcy Reform Act of 1978, created impressive new powers and responsibilities for the...more
Our May 23, June 28, July 13 and August 3 posts discussed the First Circuit’s January 12 decision in Mission Product Holdings, Inc. v. Tempnology, LLC. and, most recently, the pending petition for certiorari. Since our last...more
In the era that preceded the Bankruptcy Reform Act of 1978 and its enactment of the Bankruptcy Code, bankruptcy estates often lost the value of leases and other contracts that could have been realized for creditors by use or...more
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 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