In addition to the cases discussed in "Considerations in Terminating an Insolvent Franchisee" in the June 24, 2010, Franchise Alert (available at www.wileyrein.com/insolvent_franchisee), two recently reported decisions have looked at franchisor attempts to gain relief from bankruptcy stays in order to enforce post-termination provisions.
The Bankruptcy Code provides several protections for parties that have supplied goods or services to a debtor on credit prior to the debtor’s bankruptcy petition date.
Two items of interest in the on-going saga of intellectual property enforcement against bankrupt Collezione Europa and its principals, Paul and Leonard Frankel.
As widely reported, the bankruptcy auction for the Texas Rangers Major League Baseball franchise ended with a winning $593 million bid from an ownership group led by Nolan Ryan.
FTC Amends Telemarketing Sales Rule: On July 29, 2010, the FTC announced new amendments to the Telemarketing Sales Rule that will prohibit debt relief companies from collecting advanced fees.
The United States Bankruptcy Court for the District of Delaware has held that policy proceeds were not part of the insured entity’s bankruptcy estate because previous entity claims were dismissed with prejudice, it was highly speculative that the bankruptcy trustee would approve indemnification of directors and officers and the policy’s priority of payment provision provided that entity coverage was only available after payment of proceeds for direct coverage to insured persons. In re Downey Fin. Corp., 428 B.R. 595 (D. Del. Bankr. May 7, 2010).
During the current economic downturn, a number of financially distressed franchisees either have filed or may file for bankruptcy protection to restructure their financial obligations. As a result, franchisors should familiarize themselves with some bankruptcy basics before they are confronted with the situation.
What Happens If One of Our Franchisees Declares Bankruptcy?
In a decision not designated for publication, the United States District Court for the Northern District of California, applying California law, has held that an insurer's declaratory judgment complaint for rescission effectuated the rescission of the policy and that the subsequent coverage litigation confirmed the validity of the rescission. In re Sonic Blue Inc., 2010 WL 2034798 (N.D. Cal. May 19, 2010).
The United States Court of Appeals for the Third Circuit, applying New York law, has held that an inadequate consideration exclusion unambiguously bars coverage for a lawsuit arising out of a debt restructuring transaction. Delta Financial Corp. v. Westchester Surplus Ins. Co. (In re Delta Financial Corp.), 2010 WL 1784054 (3d Cir. May 5, 2010).
On April 5, 2010, the United States Bankruptcy Court for the Middle District of Florida denied motions filed by Black Crow's secured creditor that would have likely ended the company's chance to reorganize its operations under chapter 11 of the Bankruptcy Code.