Almost 15 years ago, new shale and fracking technology opened areas like North Dakota and Appalachia to significant oil and gas exploration and development, but the advances also created the need for construction of pipelines and related facilities (e.g., gathering, storage, and/or transportation systems) to ensure that oil and gas could be economically moved by interstate transport to markets vital to the U.S. economy.

In Juneand Decemberof 2020, Miller Canfield reported that the Fifth and Eleventh Circuits had held that the Small Business Administration ("SBA") may exclude debtors in bankruptcy from consideration for Paycheck Protection Program ("PPP") loans, albeit for differing reasons.

We have blogged previously about section 546(e), the Bankruptcy Code’s safe harbor for certain transfers otherwise subject to avoidance as preferences or fraudulent transfers. See 11 U.S.C. § 546(e). Among the transfers protected by the section 546(e) safe harbor are transfers by or to a “financial participant” made “in connection with a securities contract.” Id.

When an individual files a Chapter 7 bankruptcy case, the debtor’s non-exempt assets become property of the estate that is used to pay creditors. “Property of the estate” is a defined term under the Bankruptcy Code, so a disputed question in many cases is: What assets are, in fact, available to creditors?

For the past few years, the federal circuit courts have struggled with the issue of whether a creditor retaining possession of bankruptcy estate property violates the automatic stay. For example, is a creditor required to automatically turn over a vehicle as soon as the bankruptcy petition is filed, or can the creditor retain possession of the vehicle while awaiting an order of the bankruptcy court adjudicating turnover in an adversary proceeding?

The United States Supreme Court unanimously reversed the Seventh Circuit and resolved a split among the circuits in a ruling issued on January 14, 2021, concluding “that mere retention of property does not violate the [automatic stay in] § 362(a)(3).” City of Chicago v. Fulton, 19-357 (Sup. Ct., Jan. 14, 2021). Consequently, a creditor that has properly repossessed or otherwise obtained possession of a debtor’s property prior to the debtor’s bankruptcy filing will not violate the automatic stay afforded to the debtor under the bankruptcy laws.

On December 14, 2020, the Bankruptcy Court for the Southern District of Texas in Chuck E. Cheese’s chapter 11 proceeding reaffirmed that section 365(d)(3) of the Bankruptcy Code generally requires commercial tenants in bankruptcy to continue to perform all of their lease obligations, including the payment of rent, subject to the bankruptcy court’s limited authority to modify the timing of performance for obligations that arise within the first sixty (60) days of the bankruptcy proceeding.

Despite a company’s claim that it deals only in legal hemp products, a federal court this week denied the company’s access to relief under the Bankruptcy Code. U.S. Bankruptcy Court Judge Joseph Rosania Jr., of the District of Colorado, dismissed United Cannabis Corporation’s (UCANN) Chapter 11 bankruptcy filing, a move that could cause concerns for cannabis companies that may be seeking bankruptcy relief, particularly in the midst of a global pandemic.

Bankruptcy Courts Struggle with Drawing the Line for Cannabis Industry Protections

Doing business in the United States

2021

2

Hogan Lovells

Doing business in the United States 2021

3

Contents

Introduction1

I.Openness of U.S. markets to foreign investment

2

II.Direct or indirect market entry and choice of entity

8

III. Commercial contracting

20

IV.Labor and employment law considerations

26

V.Immigration laws

34

VI.Intellectual property laws

40

VII. Export control and economic sanction laws

46

VIII. U.S. antitrust laws

56

Frequently, borrowers file for bankruptcy at the 11^th hour to halt foreclosure sales. Once a petition for bankruptcy relief has been filed, secured creditors must cease their collection efforts to avoid violating the automatic stay. However, the automatic stay terminates upon a debtor’s dismissal and closure of the bankruptcy case. A Pennsylvania bankruptcy court recently ruled that if a foreclosure sale occurs between the time when a bankruptcy case is dismissed and when it is reinstated, the foreclosure sale is not void and does not violate the automatic stay.