Introduction
Background
Third Circuit's majority opinion
Dissent
Analysis
Successor claims as property of the estate
Introduction
Background
Release of non-debtors in US bankruptcy proceedings
Recognition and enforcement of foreign non-debtor releases
Limits on bankruptcy jurisdiction
Welcome to the first issue of International News for 2014. In this issue we focus on employee benefits.
First, however, in our Features section, we consider a number of ways of mitigating risk in African investments. As Africa becomes increasingly developed, investment opportunities are becoming increasingly appealing, but investors must still act wisely.
Introduction
Shifting balance between international arbitration and bankruptcy
Arbitration clauses in US bankruptcy courts
Implications of Stern v Marshall
Introduction
Federal pre-emption
Section 546(e) safe harbour
Tribunecase and decision
Lyondell: background
Former shareholders in leveraged buyouts may be sued by the estate representative or by creditors to recover funds paid to them for their shares as fraudulent transfers under federal or state law if the debtor subsequently files for bankruptcy.
Summertime is arguably the best time of the year. Warm weather. Long-awaited family vacations. Extended daylight. And unique to this summer, as of July 1, 2013, in most states, we have substantial amendments (the 2010 Amendments) to the Uniform Commercial Code (UCC) to digest (maybe even under an umbrella on the beach). The 2010 Amendments are intended to clarify existing law, especially with respect to how certain types of debtors are named in financing statements. As of July 3, 2013, 44 states and the District of Columbia had enacted the 2010 Amendments.
Under French law, the divestiture of an unprofitable business can create specific legal risks resulting from the status of the sold business. International companies should anticipate a number of issues when selling a French loss-making subsidiary, including, but not limited to, issues surrounding the sale price, the risk of post-closing liabilities under bankruptcy proceedings and the risk of post-closing liabilities relating to employee claims.
Sale Price
The U. S. Court of Appeals for the Third Circuit, equating a covenant not to sue under a patent with a license, has concluded that a trustee in bankruptcy cannot unilaterally reject the covenant as an executory contract. In re Spansion, Case Nos. 11-3323, -3324 (3rd Cir., Dec. 21, 2012) (Scirica, J.).
Spansion and Apple settled a patent dispute at the U.S. International Trade Commission (ITC) regarding flash memory products, with Spansion agreeing to dismiss its case and to refrain from filing related actions. In pertinent part, the agreement stated: