When he was appointed by the Eleventh Circuit, U.S. Bankruptcy Judge Peter D. Russin probably did not expect to have to decide who has rights to the Twitter, Instagram, and TikTok handles associated with social-media-forward energy-drink brands. But that is exactly what Judge Russin did in a recent opinion related to the bankruptcy of “Bang” energy drink’s manufacturer, Vital Pharmaceutical, Inc.
If at first you don’t succeed, try (and maybe try) again.
Basic Facts: Nomenclature and Numbers
When a previously reorganized debtor files a second chapter 11 case, courts and commentators refer to that continued entity’s second reorganization as a “chapter 22.” When a third case follows a second, “chapter 33” is a favored colloquialism; when a fourth, “chapter 44” is the name of choice. In practice, however, industry figures often denominate any repeat bankruptcy as a “chapter 22.”
In two cases in as many months, the Supreme Court tackled the application of sovereign immunity in two separate insolvency statutes. Two separate government-like entities suffered conflicting fates while the Court (arguably) employed the same analysis. How so?
Clear Statement Rule
In the latest decision of the Hong Kong court to consider the interplay between arbitration clauses and winding-up or bankruptcy petitions, on 22 May 2023, the Hon. Linda Chan J (the Judge) made a winding-up order against Simplicity & Vogue Retailing (HK) Co. Limited (the Company) and rejected the Company’s argument that the dispute over the underlying debt should be referred to arbitration.
We have blogged a fewtimes about the Supreme Court’s decision in Siegel v. Fitzgerald and its implications.
On May 8, cryptocurrency platform Bittrex filed for chapter 11 in Delaware. Bittrex’s first day filings emphasize that, unlike many other crypto filings over the past year, this case is not a “free fall” bankruptcy. In fact, a plan has already been filed, and the first day declaration said the debtors “took extensive action pre-petition to ensure full customer recovery, and plan to swiftly bring these chapter 11 cases to a responsible conclusion.”
Congress passed the operative texts without noticeable fanfare. From its enactment to today, section 363(k) has entitled a secured creditor to “credit bid” the full amount of the debt owed by a debtor in any sale of the underlying collateral pursuant to section 363(b). That this statutory bequest elicited little debate made imminent sense, for Congress had thereby codified one of secured creditors’ seemingly time-honored rights.
In my earlier posts I wrote about
and
Too many fish in the pond, too many electric birds not yet in the sky
Although in the Ninth Circuit the decision to revisit an order under FRCP 60 is “highly discretionary,” judges still must explicitly grapple with the relevant factors. That was the clear message sent by Judge Haywood Gilliam Jr. of the Northern District of California when reviewing an appeal from the PG&E Corporation’s chapter 11 bankruptcy.
On April 24, 2023, the First Circuit’s opinion in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin came up for oral argument before the Supreme Court. At issue in this appeal is whether this provision’s “abrogat[ion]” of sovereign immunity “as to a governmental unit,” defined to include any “other … domestic government” in section 101(27), embodies a congressional intention to revoke the sovereign immunity of a Native American tribe with sufficient and obvious clarity to be construed as such a revocation.