In Mission Products Holdings, Inc. v. Tempnology, LLC, the U.S. Supreme Court resolved a question that vexed the lower courts and resulted in a circuit split: does the rejection by a debtor-licensor of a trademark license agreement terminate the licensee’s rights under the rejected license?

It is a well-established principle of bankruptcy law that claims generally crystallize as of the bankruptcy petition date. Of course, section 506(b) of the bankruptcy code allows over-secured, secured creditors to recover post-petition interest and costs, including reasonable legal fees, if their documentation provides them with the right to recover these costs. But what about unsecured creditors – are post-petition legal fees incurred by an unsecured creditor whose contract with the debtor provides for reimbursement of legal fees allowed or not?

Last year, a California Bankruptcy Court wiped out $10.2 million in default interest (“DRI”) when it ruled that a 5% DRI was an unenforceable penalty in a Chapter 11 bankruptcy case where the construction lender fully recovered principal, interest, and other costs of collection.

Bankruptcy Rule 2004 allows the examination of any entity with respect to various topics, including conduct and financial condition of the debtor and any matter that may affect the administration of the estate. Does a subordination agreement that is silent on the use of Rule 2004 prevent the subordinated creditor from taking a Rule 2004 examination of the senior creditor? Yes, says an Illinois bankruptcy court.

In a landmark decision released on January 31, 2019, the Supreme Court of Canada (SCC) ruled in Orphan Well Association v Grant Thornton Ltd. that the environmental remediation obligations of a bankrupt oil and gas company must be fulfilled in priority over all other claims, including secured claims. In addition to immediate effects to creditors of Alberta oil and gas interests, creditors of all sectors will want to analyze the implications of this case.

Background

Dans une décision historique rendue dans l’affaire Orphan Well Association c Grant Thornton Ltd. qui a été publiée le 31 janvier 2019, la Cour suprême du Canada (la « CSC ») a conclu que les obligations d’assainissement environnemental d’une société pétrolière et gazière en faillite doivent être satisfaites avant toutes les autres obligations, y compris les obligations garanties. Outre les créanciers du secteur pétrolier et gazier de l’Alberta qui sont directement touchés par la décision, les créanciers de tous les secteurs ont intérêt à bien en analyser les conséquences.

Can a profit-sharing provision in a commercial lease survive assumption and assignment by a debtor? Analyzing such a provision, the Third Circuit answered “no,” finding the provision to constitute an unenforceable anti-assignment provision. Haggen Holdings, LLC v. Antone Corp, 739 Fed. Appx. 153 (2018).

Legal and Factual Background

Equitable mootness is a judicially created doctrine often applied in appeals from orders of bankruptcy courts confirming chapter 11 plans of reorganization. In instances where granting relief on appeal would result in overturning the confirmation order and therefore unravelling a substantially consummated chapter 11 plan, appellate courts have, in certain circumstances, abstained from deciding appeals in reliance on equitable mootness.

After Energy Future Holdings (EFH), maybe not so much. The size of the break-up fee approved by the bankruptcy court in EFH was undoubtedly large by any account – US$275 million. But it was approved following all necessary filings, notice and hearings. All parties and counsel involved were highly sophisticated and experienced. The court that approved the fee was the Delaware bankruptcy court, by all accounts one of the most experienced and sophisticated bankruptcy courts in the nation. And there wasn’t even a hint of fraud, misrepresentation or failure to disclose material facts.

Shareholder of a Korean corporation (“Cuzco Korea”), the sole member of a chapter 11 limited liability company debtor (“Cuzco USA” or the “Debtor”), brought an adversary proceeding against the Debtor and others, asserting claims directly, derivatively on behalf of Cuzco Korea and “double derivatively” on behalf of the Debtor. On the defendants’ motion to dismiss, the bankruptcy court for the district of Hawaii was required to consider the impact of Korean law on the derivative claims as well as notions of forum non conveniens.