In our Intellectual Property Law Update of December 2016 we advised you of the recent decision of the Bankruptcy Appellate Panel for the First Circuit Court of Appeals (the “BAP”) in Mission Products Holdings, Inc. v. Tempnology (In re Tempnology, LLC) upholding the rights of a licensee of trademarks to continue use of trademarks after the debtor’s rejection of the trademark license. As set forth below, the First Circuit recently reversed that decision.  

In In re Hungry Horse, LLC, Adversary Proceeding No. 16-11222 (Bankr. D. N.M. September 20, 2017) (“Hungry Horse”), the New Mexico Bankruptcy Court reminded us that many U.S. Supreme Court opinions can be limited in scope and do not necessarily dispose of all potential remedies to an issue.

Introduction

Luxembourg recently adopted a number of legislative reforms aimed at modernising the rules applicable to commercial companies. In relation to the restructuring and insolvency of Luxembourg-based entities, Parliament is discussing the long-awaited Bill 6539 (the so-called 'Insolvency Bill').

In the meantime, a number of reforms which could affect the restructuring and insolvency of commercial companies have been adopted, including:

A bill containing an entirely new Insolvency Code was presented to the House of Representatives on 20 April 2017. The need for a robust insolvency framework has received substantial attention due to the ongoing economic and financial crisis. Many European countries have recently modernised their insolvency legislation or are in the process of doing so.

In the framework of the digitization of the Belgian judiciary, a central Solvency Register (www.regsol.be) will be available as of 1 April 2017.

Henceforth, creditors must file their claims electronically. The register will be accessible - subject to different procedural formalities - to magistrates, including substitute judges, clerks of court and public prosecutors as well as bankrupt parties, their creditors and counsel.

In a judgment of 24 March 2017 (in Dutch), the Supreme Court of the Netherlands upheld the longstanding requirement that for a debtor to be declared bankrupt, there need to be at least two creditors.

In In re NewPage Corporation, et al., Adversary Proceeding No. 13-52429 (Bankr. D. Del. Feb. 13, 2017), a Delaware Bankruptcy Court applied a unique defense to certain preferential transfers targeted by a liquidating trustee. The defense focuses on a commonly overlooked element of a preferential transfer, section 547(b)(5).

Preference 101

State and federal laws provide numerous protections to secured parties to preserve their interests in collateral. As secured parties well know, however, these protections become more and more limited when the collateral is pledged to multiple secured parties. Issues, like priority of interests and liens, become more prevalent when the collateral at issue falls in value and multiple secured parties are fighting to enforce their interests in order to satisfy their debts.

State and federal laws provide numerous protections to secured parties to preserve their interests in collateral.  As secured parties well know, however, these protections become more and more limited when the collateral is pledged to multiple secured parties.  Issues, like priority of interests and liens, become more prevalent when the collateral at issue falls in value and multiple secured parties are fighting to enforce their interests in order to satisfy their debts.

On 18 January 2017, Regulation (EU) No 655/2014 (the "Regulation") will become fully applicable. It will henceforth be possible to obtain in any EU Member State, with the exception of Denmark and the United Kingdom, a preservation order for bank accounts of a debtor situated in another Member State.

The Regulation introduces at the European level a certain degree of transparency in terms of the debtor's assets.