The US Supreme Court, in an 8-1 decision authored by Justice Kagan, reversed a decision of the First Circuit and held that the rejection of a trademark license agreement under Bankruptcy Code Section 365 (11 U.S.C. § 365) constitutes a breach of the license agreement that has the same effect as a breach outside bankruptcy. Therefore, the licensor’s rejection of the license agreement does not rescind or terminate the licensee’s rights under the license agreement, including the right to continue using the mark. Mission Product Holdings Inc. v. Tempnology, LLC, Case No.
In a major development in BVI insolvency law and practice, the BVI Commercial Court has held in Constellation Overseas Limited (BVIHC (Com) 2018/0206 – 2012), that provisional liquidation is available to facilitate a restructuring. The decision brings the British Virgin Islands broadly into line with Cayman and Bermuda, where restructuring provisional liquidations have been used to support several landmark cross-border restructurings in recent years.
The Supreme Court of the United States granted Mission Product Holdings’ petition for certiorari to determine whether a debtor-licensor can terminate the rights of trademark licensees by rejecting its trademark licensing agreements as part of its bankruptcy case. Mission Product Holdings, Inc. v. Tempnology LLC, Case No. 17-1657 (Supr. Ct. Oct. 26, 2018). The specific question presented is:
The US Court of Appeals for the 11th Circuit affirmed the district court’s dismissal of a fraudulent conveyance claim for a “blocking right” and right of first refusal under a patent transfer agreement, addressing the district court’s proper exclusion of expert testimony on whether the debtor was insolvent at the time of the relevant transfer. In re: Teltronics, Inc., Case No. 16-16140 (11th Cir. Oct. 2, 2018) (Kaplan, J).
In the recent decision of Alexander Pleshakov v Sky Stream Corporation and Others (Pleshakov), the BVI Court of Appeal considered the scope of its jurisdiction to interfere with findings of fact made at first instance. This is the second time this year that the BVI Court of Appeal has addressed this issue.
In the recent BVI Court of Appeal decisions of Wembley and Sutton ‘disabled’ bearer shareholders were found to have a constitutional right not to be deprived of their property without compensation.
In Stanford v Akers the BVI Court of Appeal addressed standing in the context of applications under Section 273 of the Insolvency Act 2003, whereby an aggrieved person can ask the court to reverse or vary a liquidator's decision.
The liquidators of Chesterfield entered the company into a global settlement agreement with Deutsche Bank AG and Kaupthing, which included the admission of Kaupthing's claim in Chesterfield's liquidation.
Facts
First-instance decision
Court of Appeal decision
Comment
In Delco Participation BV v Green Elite Limited (2018) the Court of Appeal considered the test for appointing liquidators to a company following an alleged loss of substratum.
In separate but related proceedings, the BVI courts have permitted an applicant to inspect documentation relating to the liquidation of certain BVI companies.
In Robert Tchenguiz v Rawlinson & Hunter Trustee SA (the TFT Trust claim) Tchenguiz sought delivery of all proof of debt and claim documentation submitted by the defendant trustees to the joint liquidators in the liquidation of the companies.