Chapter 6 of the South African Companies Act, 2008, as a corporate restructuring regime, provides a formal restructuring tool for financially distressed (which exists when a company is unable to pay its debts as they fall due (cash-flow insolvency) or when a company’s liabilities exceed the value of its assets (balance-sheet insolvency) or when those events are likely to occur in 6 months (imminent insolvency) companies.

Today, amendments to the Bankruptcy and Insolvency Act (BIA)and the Companies’ Creditors Arrangement Act (CCAA), introduced to Parliament in April 2019 as Bill C-97, came into force. Certain of these amendments are likely to impact the usual flow of business among insolvency and restructuring professionals.

In an 8–1 decision, the Supreme Court of the United States reversed the US Court of Appeals for the First Circuit and held that rejection of a trademark license in bankruptcy constitutes a breach of the license agreement, which has the same effect as a breach outside bankruptcy. Therefore, a licensor’s rejection of a trademark license agreement does not rescind or terminate the licensee’s rights under the agreement, including the right to continue using the mark. Mission Product Holdings Inc. v. Tempnology, LLC, Case No. 17-1657 (S. Ct.

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.

As Yeats said in his poem, The Second Coming: "mere anarchy is loosed upon the world". While perhaps not anarchy, certainly most insolvency practitioners expected the Alberta Court of Appeal decision in Redwater[1] to be upheld, preserving the priorities afforded to secured creditors and rendering the Provincial Government to be an unsecured Creditor.

On December 10, 2018, the Superior Court of Quebec (Court) released an important judgment concerning the assignment of contracts under the Companies' Creditors Arrangements Act (CCAA), in which the Court held that it was possible for an assignee to have contracts transferred to it without having to assume the monetary penalties arising from the assumed contracts for defaults by the assignor prior to the assignment.[1]

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).

A recent federal bankruptcy court decision addresses important principles of fiduciary conduct (and the benefits of a state exculpatory statute) in the context of a financially distressed not-for-profit hospital. 

New Decision Affects D&O Liability

A recent federal bankruptcy court decision addresses important principles of fiduciary conduct (and the benefits of a state exculpatory statute) in the context of a financially distressed not-for-profit hospital.