After a January 2018 decision by the First Circuit Court of Appeals, trademark licensees are faced with uncertainty again. (In re Tempnology, LLC, 879 F.3d 389 (1st Cir. 2018)). In our previous update, we discussed a 7th Circuit case dealing with the same issue. At the time we predicted that the holding in the case may have resolved the issue. (Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC, 686 F.3d 372 (7th Cir. 2012)). But that was wrong.

The Alberta Court of Queen's Bench recently reviewed the law regarding priority of operator’s liens and emphasized the heavy evidentiary burden to be satisfied by a creditor asserting a possessory lien in Cansearch Resources Ltd v Regent Resources Ltd, 2017 ABQB 535.

Cansearch’s Operator’s Lien and the Bank’s Security

The Saskatchewan Court of Appeal recently released a landmark decision National Bank of Canada v KNC Holdings Ltd, 2017 SKCA 57 (National Bank) which will significantly affect the priority ranking of certain Saskatchewan builders' lien claims in insolvency proceedings. In a unanimous decision, the Court overruled a long line of authorities which had held that builders' liens arising in connection with the recovery of minerals could defeat prior-registered security interests.

In a May 2, 2017 decision, the Sixth Circuit Court of Appeals decided the fate of a stream of rental payments from the bankrupt owner of a residential complex. (In re: Town Center Flats, LLC, No. 16-1812, May 2, 2017, Sixth Circuit Court of Appeals) The case resembled a similar one, far more controversial and with a different result, from 1993. (Octagon Gas Systems, Inc. v. Rimmer, 995 F.2nd 948, 10th Circuit Court of Appeals, 1993) The Octagon Gas case roiled the factoring and receivables purchasing industry.

The Ontario Court of Appeal recently released a decision allowing a certification application by a union to proceed in the face of a receivership of the employer. The decision garnered a strong dissent from Justice Lauwers, suggesting that the decision of the majority would "effect a sea change in insolvency law."

Recent Events

The federal district court in New Jersey recently denied an appeal by maritime creditors of Hanjin to lift bankruptcy protections and allow arrest of Hanjin's vessels in and near U.S. ports. The federal district court judge agreed with the bankruptcy judge's grant of blanket protection to Hanjin and directed creditors of Hanjin to file claims in the Korean bankruptcy proceeding. Those claims are now due by October 25, 2016 in the Korean proceedings, according to an amended order issued by the Korean judge.

A number of towage and bunker suppliers in the Hanjin Shipping Co. Ltd. chapter 15 case have requested the intervention of a district court judge to clarify whether the U.S. Bankruptcy Court has authority to "effectively extinguish[] . . . maritime liens" on chartered vessels. The bankruptcy judge has acted to try to preserve Hanjin's assets and ability to continue its business, as he should do. The case concerns roughly $14 billion worth of cargo afloat or held up in container yards across the world. At least 10 vessels are known to be steaming toward U.S.

Prepaid rent or a security deposit? The distinction is an important and potentially costly one for landlords in the current economic climate. In 2015, the Alberta Court of Appeal in York Realty Inc. v Alignvest Private Debt Ltd., 2015 ABCA 355 [Alignvest CA] upheld a decision of the Court of Queen’s Bench (Alignvest Private Debt Ltd.

This past weekend, Hanjin vessels commenced unloading operations on the U.S. West Coast for the first time since Hanjin filed its bankruptcy petition with the Seoul Central District Court in Korea. Vessels have also been reportedly unloading in Japanese and Canadian ports. There is an obvious overriding public interest in having the many millions of dollars worth of cargo resume moving to its various destinations.

Yesterday afternoon in Newark, New Jersey, Judge John K. Sherwood of the U.S. Bankruptcy Court granted Hanjin Shipping Co. Ltd.'s request to recognize its Korean bankruptcy case and to provide U.S. bankruptcy protection to its assets and operations within the United States. However, the U.S. Bankruptcy Court's protection is subject to another hearing on Friday to sort out what arrangements can be made among the various stakeholders.